DENNIS v. UNITED STATES

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Argument of Telford Taylor

Chief Justice Earl Warren: Number 502, Raymond Dennis et al., Petitioner, versus United States.

General Taylor.

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

This case is here on certiorari to the Court of Appeals the Tenth Circuit and it involves appeals from judgments of conviction for the crime of conspiracy to defraud the United States under the appropriate clause of the General Federal Conspiracy Statute, 18 U.S. Code 371.

Now the nature of the unlawful conduct which this case involves arises out of Section 9 (h) of the old Taft-Hartley law enacted in 1947.

That Act was to be sure, repelled in 1959 and its successor, Section 504 of the Labor Management Act is the statute that Your Honors reviewed in the Archie Brown case last year.

But the indictment here antedates that repealer and that is why it is arising under the old law.

The old law, Section 9 (h) was before this Court in appropriate proceedings to test constitutionality in the Douds case and thereafter, there were various cases involving prosecutions for filing false affidavits, the Jencks case, the Travis case and various others that who've been here.

So I take it that the Court is generally familiar with the structure of that law which required that officers of labor unions file affidavits denying that they were members of or affiliated with the Communist Party as a precondition for a compliance status on the part of the union of which they were officers.

That Section 9 (h) incorporated as a sanction for filing false affidavits, the general federal statute known as the False Statements Act, 18 U.S. Code 1001.

So that the penalty for the false affidavits is that general criminal provision rather than any peculiar provision of the Taft-Hartley law itself.

Justice Potter Stewart: And most of -- most if not all of the previous and other prosecutions other than this case had been brought under that statute, isn't it?

Mr. Telford Taylor: They have indeed.

This is the -- there have been two conspiracy prosecutions Mr. Justice Stewart.

One in the West case in which certiorari was denied here and this is the other one.

This is the only other case in which a conspiracy to violate the false affidavit provisions has been charged.

Now the petitioners here are or they were at the time of the acts charged, officers and employees of the International Union of Mine, Mill and Smelter Workers which referred to in the briefs for aviation purposes as Mine, Mill.

And the gist of the charge against them is that they conspired -- is that they were at the time, members of the Communist Party, and that they conspired with each other that those among them who were officers would file false affidavits, false in that they denied Communist membership when in fact they were members and thereby obtained compliance status.

I should add that of the six petitioners here at the time of these circumstances, four only were officers and actually filed affidavits.

The other two were employees not required to file affidavits but charged as co-conspirators along with the four who did the actual filing.

These convictions were affirmed by the -- the trial was in the District of Colorado, the convictions were affirmed by the Court of Appeals the Tenth Circuit.

We filed a petition for certiorari on a number of grounds.

The grant of certiorari was limited to three questions; the first being the statutory sufficiency of the indictment, that is to say whether the allegations in the indictment sufficiently make out a charge of conspiracy-to-defraud.

Secondly, the constitutionality of Section 9 (h), which indeed had been sustained in Douds but which as we suggested in our petition, the authority of that case had been at least undermined by Archie Brown and therefore, the question of constitutionality was ripe for reconsideration.

And thirdly, a question not pertaining to indictment but to the trial itself and that is the denial of motions that we made at the trial to have produced the grand jury testimony of government witnesses who testified before the grand jury.

That motion is made in the alternative either for the production direct to us, the defense counsel, or failing that for production to the Court for in camera inspection.

Those motions were denied and that raises the third question, standing generally from the Pittsburgh Plate Glass decision of -- several years ago.

Now the limited grant of certiorari here I think obligates any necessity for any extended statement on the facts in the evidence.

But the Court will see that these cases of a certain age and it may assist a little bit if I indicate what the procedural steps had been and why it now appears here so long after.

The -- under statute repealed seven years ago, the indictment is a 1956, ten years ago and as the indictment shows, the overt acts and the initial affidavits filed here that were alleged to be false were filed as long ago as 1949, the time would be alleged conception of the conspiracy.

When the indictment was brought that the defendants of whom there were 14 charged in the indictment, filed a motion to dismiss on various grounds, including the constitutional ground which we did not argue below because the lower courts were then have been bound by Douds, but in which we seriously pressed the motion to dismiss on the ground of statutory insufficiency that there was no sufficient showing in the indictment of the necessary element of fraud.

That motion was argued before Judge Breitenstein, he was then the District Judge and he held it a long time and then was appointed to the Circuit Court of Appeals and without deciding the motion, he referred it to the late Judge Niles who is the Senior District Judge in the District of Colorado.

Judge Niles heard it argued a second time, held that a considerable period of time then denied it.

So the defendants didn't actually go to trial until 1959.

Then three of them plead nolo contendere, 11 went to trial.

The judge dismissed the charge against two, nine were convicted and we appealed to the Court of Appeals for the Tenth Circuit and the judgment was reversed on the ground of errors in the admission of evidence.

Justice Tom C. Clark: What were the grounds?

Mr. Telford Taylor: Errors in the admission of evidence.

Inadmissible evidence pertaining to conspiracy and the Court of Appeals also directed the equivalent, two more defendants, so there is seven left and the seven left were tried the second time in 1963.

The jury acquitted one more and the six remaining are the petitioners here.

I should add that following the decision in the Archie Brown case, we filed a petition for rehearing in the Court of Appeals, alleging the new grounds but that was denied.

Now the evidence is summarized on page 5 of our brief, but I think I need not advert to it farther.

The general gist was a period of noncompliance followed by a decision that compliance was necessary, filing of these affidavits for the purpose of securing compliance and that really is the whole story.

The rulings of the trial I have already averted to in connection with the grand jury in minutes.

I would like to discuss with I hope appropriate affirmity each of the three points we have raised in the petition and I will deal first of course with the points relating to the indictment and in accordance with the general principles about postponing constitutional questions if other grounds are available.

I will first discuss the statutory point.

Now the two clauses, the 18 U.S. Code 371, the conspiracy statute has been here many times of course.

It punishes the conspiring either to commit any offense against the United States or to defraud the United States or any agency in any manner and so forth.

And there have been, over the years, repeated decisions indicating that those two clauses of the statute are not mutually exclusive, but they are distinct that they are in part overlapping that they are not congruent that an indictment to be valid under that statute must contain a proper charge of either one element or the other or both.

To be brought under the offense clause, a statutory offense must be charged to the -- the indictment.

To be brought under the fraud clause, fraud must be charged as an element of the offense or to be brought into both you must have both elements.

Now in this case, we have an indictment brought in the language --

Justice Potter Stewart: Of the actual fraud as an element of the offense is it -- it has to be a conspiracy to defraud, but it doesn't need to be successful to defraud.

Mr. Telford Taylor: That's quite right Mr. Justice Stewart and it does not need to be successful, but the charge must embody a charge of intent to defraud the government if it is to survive under the foreign clause and that charge must be substantiated by the underlying allegations --

Justice Potter Stewart: For the purpose of the --

Mr. Telford Taylor: Yes.

The case that we most particularly rely on in this connection is the Bridges case in 346 United States.

Now the Bridges case in this application here, stands for two propositions which we think are governing.

In the first place, that the clause invoked by the government, the invocation is not determinative, the government cannot make out a case under the fraud clause simply by saying it would like to do so.

Simply by saying conspiracy-to-defraud, that's not enough.

You must look through to the substance of the charge to see whether fraud is indeed there.

And the second thing that Bridges case held was that if the unlawful element in the conspiracy is indeed a statutory offense, then it will not lie under the fraud clause unless fraud is an essential element of that offense.

In the Bridges case itself, the charge was conspiracy-to-defraud the government by making a false statement and a naturalization proceeding and the Court held that default statement in the naturalization proceeding is itself statutory offense and that it is an offense whether fraudulent or not that any false statement, fraudulent or not, is punishable under that statute.

And therefore, since the offense constituting the unlawful element of the conspiracy did not necessarily involved fraud, the conspiracy-to-defraud had not been made out.

Justice Potter Stewart: Maybe we're talking about different cases or maybe we're talking about the same one I'm -- I'm misinformed, but I had -- my understanding the Bridges case was that it involved statute of limitations in the War-time Suspension of the statute of limitation --

Mr. Telford Taylor: We're talking indeed about the citations (Voice Overlap)

We are talking about the same case.

Justice Potter Stewart: (Voice Overlap) -- that I don't remember you state in your argument.

Mr. Telford Taylor: I did indeed, yes.

It did involve the War-time Suspension of Liabilities Act, but that was exactly the same question.

If a conspiracy-to-defraud were properly charged, then the War-time Suspension would have applied and the statute of limitations would not have run, but since a conspiracy-to-defraud was attempted to be charged but unsuccessfully charged, the War-time Suspension Act did not apply and the prosecution was barred.

That is I think with all respect is the precise holding of the case.

Now, applying that here, and may it please the Court, the statute involved here is 18 U.S. Code 1001.

The only unlawful thing that the defendants are charged with doing here is agreeing to file and indeed filing false affidavits.

If no affidavits have been filed, there would be no conspiracy.

If the affidavits had been true, there was no conspiracy.

The only unlawful element in the whole picture here is the charge that these affidavits were false.

Now, this Court has twice said and the lower federal courts have repeatedly held that under 18 U.S. Code 1001 fraud is not an essential element.

This came up for a recent consideration in the Grainger case which was just argued together with Bridges and decided at the same time and the Court in the Grainger case, speaking through Mr. Justice Burton, drew the distinction between the so-called false claims statute, where the case held fraud is an essential element, and the False Statements Act involved here which the Grainger opinion said does not involve fraud as an essential element.

Therefore, and as I say, there are many lower court cases holding the same thing that fraud is not an element under the False Statements Act, we say here that the government has indeed endeavored to charge a conspiracy-to-defraud.

They have tried to invoke that clause, but all they have actually done is charge a conspiracy to violate 1001 and fraud is not an element of that statute anymore than it was of the statute in Bridges case.

Now, may I point out one other quite relevant factor here, this case is I think a clearer one for the dismissal of this indictment than was Bridges.

In the Bridges case, one could and indeed the Government did argue that the United States have relied on the truth of the statement.

The statement alleged to be false there was that Bridges in the course of naturalization proceeding was asked whether he had been a member of the Communist Party and said no.

And the Government's position was that in reliance on that denial, the Government naturalized him.

That cannot be argued here because in point of fact, the National Labor Relations Board did not rely on the truth of this affidavit.

The initial procedure before the Board was indeed that they would pass on the truth or falsity of these affidavits, but Your Honors in the Leedom case and Meat Cutters case, held that this was not a matter for the Board's determination that all that the Board was interested in was getting an affidavit and compliance status followed whether or not the affidavit was false or true.

Indeed, the prosecution for filing a false affidavit could follow, but noncompliance did not follow.

Therefore, nothing so far as the Board was concerned hang-on the truth or falsity of these affidavits and there was therefore no reliance in the sense of a fraud prosecution.

Justice John M. Harlan: Is there a statute of limitations question involved in your argument?

Mr. Telford Taylor: No, there is not directly Mr. Justice Harlan.

It is possible that if this were construed as an indictment for conspiracy to commit an offense, that some of the initial affidavits would now be barred.

There are complications there because of a change in the statutory period in the course of the -- from three years to five years in the course of that and I really don't think it is pertinent to the body of my arguments.

I would prefer not to get into it, that is not a crucial part of our contention here.

We do however say that there was prejudice but we are not making a purely technical argument here and the -- of course, I never know whether the word technical means in argument if it is stronger or weaker, but we do feel that this is not purely a form of proposition.

The Government suggests in their brief that there is no real prejudice here, but we suggest there is.

If all that has been done here is to charge the defendants with conspiracy to commit an offense, and the Government addresses that up with fraud language, well fraud indictments are read -- the indictment is read to the jury.

Of course, juries are always instructed that the indictment is only a charge and not a proof but any trial a lawyer knows that what the jury hears from an indictment, does make a difference.

The view that people take charges of fraud is very different in the view they take of some kinds of offenses.

We have cited in our brief situations where judges in sentencing have indicated that they've view a charge of conspiracy-to-defraud as the very much more serious one than conspiracy to commit an offense.

So that in all of those ways, prejudice was certainly possible whether they are not, then as Mr. Justice Harlan suggested, there may also be a statute of limitations problem too.

I would suggest in conclusion on this point that there is also a general policy problem.

The clause of that statute having to do with fraud, that is the conspiracy-to-defraud, has been a good deal criticized in recent years as being too loose and imprecise and being a relic of days when conspiracy concepts were not as tight as the Court has drawn in more recent years.

And that there is already a need for other than as a vague catchall, but the Government should be required to specify a statutory offense as the object of an indictment.

And however that may be, there's no suggestion that it is beyond the power of Congress to do this, but we don't think the Court should extend the application of the fraud clause to cases clearly covered by the offense clause under these circumstances.

Now, I would like to pass to the sector of the points, the constitutionality of Section 9 (h).

Our basic argument here is that this case is governed by the Archie Brown decision that there is no meaningful distinction between this case and the Archie Brown case.

The Archie Brown case was decided in this Court on the basis of the bill of attainder and we suggest that what the Court decided there is plainly applicable here.

I will deal in a moment with distinctions which might suggest it.

We also say that the statute is unconstitutional under the First Amendment.

The Archie Brown case itself was decided in the Court of Appeals, not on the basis of bill of attainder but on the basis of the First Amendment and we think that that is an adequate alternative attack on the constitutionality of the statute.

I should add that we think that second branch of attack under the First Amendment is considerably strengthened by the decision on the -- in the Elfbrant case to which I'll advert in a moment.

The Court has so recently and so completely reviewed the bill of attainder concept that it doesn't seem to me it would serve any useful purpose for me to pursue at length.

The basis of the concept as a particular application in Archie Brown.

I'm aware of course that the Court was sharply divided in the Archie Brown case.

I am aware too that the -- and the constitutional dimension of stare decisis is not as often respected.

Nonetheless, the case is recent, fully considered and I would therefore like to devote my time to possible distinctions rather than any basic reexamination of the doctrine.

The Government has suggested that the Archie Brown decision is not applicable because in that case, the Court was concerned with a criminal sanction, Section 504, which imposed a criminal sanction against simultaneous Communist membership and union officership, whereas here the sanction is non-criminal -- is the pressure for -- on unions who wished to have a compliant status and as that Government puts it the discouragement which it affords to Communist being the way the union officers.

We cannot see that that distinction between the criminal and the non-criminal sanction is sufficient.

Cummings against -- Cummings case, Ex parte Garland, the Lovett case, none of those were criminal cases.

There is no suggestion in the majority opinion in the Brown case, that is the distinction between a criminal and another sanction should be governing, nor as I recall it that is suggested in the minority opinion.

The majority opinion in the Brown case did suggest the different distinction and that is that in 9 (h), one could lift one self out of the sanction category by resignation from the Communist Party whereas in Archie Brown, there was a five-year provision so that an immediate resignation would not have resulted in lifting the ban.

The Court did point that out in the Douds case -- in the Brown case, but once again, the majority opinion itself suggests that that may not be a sufficient distinction that the bill of attainder concept may operate whether the purpose is retributive for the past or ameliorative for the future.

The Government as far as I can see has not advanced that as a suggestion in their brief.

These are I believe the only two possible basis for distinguishing this from the Brown case and I would suggest that they are -- either of them sufficient.

Justice Potter Stewart: Am I correct in my recollection that the dissenting opinion in the Brown case said that there was no distinction or (Voice Overlap) --

Mr. Telford Taylor: I believe that's correct Mr. Justice Stewart.

Justice Potter Stewart: -- or suggest (Voice Overlap) --

Mr. Telford Taylor: Yes.

Justice Potter Stewart: -- there probably was no distinction.

Mr. Telford Taylor: Yes, I believe so.

Now so far as First Amendment is concerned, may I point out what I believe is the most important factual circumstance here and that is that the indictment is barren of any charge with respect to the nature of the defendant's Communist membership.

There is no suggestion that they knew anything about the aims of the Party.

There is no suggestion about activity.

There is no suggestion about intent.

Therefore, the Section 9 (h) has been applied throughout and I think must be regarded today as a statute where the sanction applies to bear membership, nothing more.

In the Scales case, you have the element of knowledge of the unlawful purposes.

The Elfbrandt case decided on Monday, the dissenting opinion does indeed make much of the fact that's in the statute there it was limited to members who knew the unlawful purposes of the organization.

There's no such requirement here.

The sanction applies whether or not there's any such knowledge or any degree of activity or intent and the Court of Appeals the Ninth Circuit on those rounds held Section 9 (h) unconstitutional under the First Amendment as it did not fulfill the requirements stated by this Court in the Scales case.

The Court of Appeals for Ninth Circuit decided that case three days before this Court decided the Aptheker case.

The Court of Appeals for the Ninth Circuit of course felt bound by Douds and therefore felt bound to distinguish it and distinguished Douds on the ground that that was a criminal -- that that was a non-criminal sanction whereas 504 is criminal.

But the Aptheker case which came down three days later, removed I suggest the basis for that distinction.

There was no criminal penalty there either, nor is there in the Elfbrandt case.

So again, although one can point to the difference between the criminal and the non-criminal treatment, one can point to the five-year provision as differences, it does not seem to us that those differences are meaningful for either of the constitutional arguments we are advancing here today.

Now, the Government does however advance a further argument with respect to our right to raise a constitutional issue.

Their argument is that since the charge here is one of filing false affidavits that we cannot be heard to challenge the constitutionality of the statute under which they're filed.

We do not think the argument is substantial.

We have dealt with it as carefully as possible in our reply brief.

The Government has made essentially here two points.

First, they draw an analogy to the privilege against self-incrimination and say that if a man has on the stand and would be entitled to invoke the Fifth -- the privilege against self-incrimination, but does not and proceeds to ask the question and answered it falsely he can be indicted to perjury.

Of course, we don't contest that proposition, but it seems to us wholly extraneous to anything here.

In the case, the privilege against self-incrimination, there is no problem of the authority of the tribunal to put the question.

This is a matter of personal privilege which under circumstances of possible self-incrimination gives a person privilege not to answer but it has nothing to do with the authority of the tribunal to put the question, the question may be highly relevant to the testimony.

Whereas here, the whole problem is whether there was any authority to demand this information at all.

The Government's other contention here is based upon two cases decided by this Court around 1933, a little later, 302 U.S. and 303 U.S., United States against Kapp, United States against Kay.

These were cases, one under the Homeowners Loan Act and one under the Agriculture Adjustment Act, where the defendant had gone to seek a bounty from the Government, a bounty or a benefit and had gotten it.

He got a benefit payment under the Agriculture Adjustment Act or false statement have been submitted to the Home Owners' Loan Corporation as a basis for a loan and the Court said there that having done that, he could not escape a perjury charge or false statement charge by challenging the overall constitutionality of the AAA Act or the Home Owner's Loan Act.

Well, that is very far moved from our situation.

This is no case where the defendants have gone seeking any bounty or privilege.

The labor -- the Taft-Hartley Act was a Regulatory Act imposing restrictions on what unions and management could do.

The Douds case itself, the opinion for the Court made it quite clear that this is to be regarded as a restrictive statute, not one conferring any benefits on those subject to it and the Government's position really amounts to this, that the Government can at any time pose a demand for information to an individual and force him to the alternative of either disclosing the information or engaging in litigation with the Government.

No matter how unconstitutional, no matter how unauthorized the demand for information, the defendant can be put to that choice.

Well, we suggest that that would lead to very arbitrary and oppressive consequences.

We have detailed our argument on the reply brief and I shall leave it at that point and go to our third point.

I am now away from the validity of the indictment and on the question of the access to the grand jury minutes.

This question of access to grand jury minutes of government witnesses was argued here a few years ago in the Travis case.

The Court didn't reach it because the case went off on grounds of venue.

The problem stems from the Court's decision in Pittsburgh Plate Glass and the ensuing practice in the Circuit Courts following that decision which has been far from uniform.

Now, as we understand the Pittsburgh Plate Glass decision, it held that if a defendant in a criminal trial where a witness has testified against him -- who has testified against him has also testified before the grand jury.

If the defendant requests access to the grand jury testimony for purposes of impeachment, direct the access by the defendant is conditioned on showing of particularized need, is the phrase used in the opinion.

In Pittsburgh Plate Glass, the contention was also made here that regardless of production of the minutes to the defendant, that they should have been produced to the Court for scrutiny in camera to decide whether anything in their would be useful for impeachment.

The Court in Pittsburgh Plate Glass didn't raise that question -- didn't reached that question because apparently the contention had not been made at the trial and therefore, the opinion did not reach it.

It left open, whether any particular showing should be required as a basis for in camera examination.

Because of this conceptual dichotomy in the opinion, at the trial in the present case, we made our motion in the alternative.

If the Court would care to see the terms in which the motion was initially made, the record at page 64 has the initial colloquy following the first witness and it will be seen there that we made a motion in the alternative.

We asked first that the witness signed and testified in court and before the grand jury that the minutes being made available directly to us.

That if the Court would not grant that motion then police with the Court itself examine the minutes in camera and turnover to us any minutes which they thought to contain testimony that would be useful for impeachment purposes.

Justice John M. Harlan: Are they -- the motion with respect to specific witnesses?

Mr. Telford Taylor: There is a motion with respect to each witness.

With respect to -- I think all but one of the witnesses, the motion was made that the conclusion of the direct testimony and then repeated at the clause of cross-examination.

With one witness, I think we neglected to renew it at the close of cross but yes, a motion is made in each instance on an individual basis.

Now, Mr. Justice Harlan, the practice in the lower courts in situations such as your question is directed to has varied.

There have been practically no decisions producing the grand jury testimony directly to the defense.

That possibility seems to have disappeared, but with respect to the in camera examination in the Second Circuit, the practice has been substantially automatic.

That if a government witness, a prosecution witness has testified before the grand jury and the defendant asks the testimony in every case the judge will look at it and see whether it contains anything useful for impeachment purposes.

Justice Tom C. Clark: That is in the Tenth Circuit?

Mr. Telford Taylor: No, in the Second Circuit, in the Second Circuit.

No indeed, that's not the practice --

Justice Tom C. Clark: In the second half of it [Inaudible]

Mr. Telford Taylor: No, the practice in the other Circuits has varied and in the Tenth Circuit where this case comes from, the practice has been highly restrictive and grand jury minutes have not been turned over even upon the showing that we made here.

In the District of Columbia, there has been a sort of median approach to the problem.

So there has been no uniformity and for that reason, the Court may think it's appropriate if it should reach this point to review the policy factors which seemed pertinent here.

We could --

Justice Tom C. Clark: These objections in this case will demand [Inaudible]

Mr. Telford Taylor: In our case?

Justice Tom C. Clark: In the Pittsburgh where you had to file some [Inaudible]

Mr. Telford Taylor: Well Mr. Justice Clark, under Pittsburgh as I understand it, Your Honor spoke of particularized need only in connection with production directly to the defense and did not lay down that requirement as a pretty requisite for in camera inspection by the Court, that was specifically left over.

Therefore, we would say that so far as our in camera request is concerned, we shouldn't have been called upon to show particularized need, anymore than you are in the Second Circuit today.

Justice Tom C. Clark: I was thinking [Inaudible] in the factual examination once they will then present this to the grand jury.

In -- in all the cases [Inaudible]

Mr. Telford Taylor: Well, the judge has to do that with statements made to the government under Section 3500 today and the pertinent policy factor seem to us very -- they're now over here.

If a witness has indeed testified before the grand jury and then testifies to court, it seems to us that a function and interpretation of the Sixth Amendment and the right of confrontation would really call for access to these records to use for any impeachment purposes that they're offered.

Now, however, we do think that our showing a particularize need here was adequate, we did.

The colloquy is on page 64, there with respect to first witness and argument was again made after another witness, the record references are on the brief.

We pointed out to the Court discrepancies between the testimony is given on the second trial and at the first trial, and at various other trials where the same witnesses had testified involving petitioner Travis.

There had been separate proceedings involving Travis before this at which some of these witnesses have testified.

So we think the showing of particularized need was in all respects, adequate and indeed if I read the Government's brief correctly, I cannot see that they seriously challenge our view that the minutes should have been produced for in camera inspection.

We think that there is a strong argument to be made for production directly to the defense that it would be one thing to have the trial judge screen the testimony to eliminate material which is plainly and totally irrelevant.

I mean, if a witness has been called to testify about three or four different matters, obviously the defense only needs that part of his testimony that relates to the case, but we don't think it's in keeping with the Jencks case or Section 3500, to have the judge pick out only those parts of the testimony that he thinks are material -- are inconsistent.

That's a decision that should be left it seems to us to the trial counsel.

Justice Potter Stewart: The Section 3500 doesn't in terms govern the situation at all --

Mr. Telford Taylor: Section 3500 does not in terms govern the situation at all, no.

Justice Byron R. White: Well, are you making a constitutional argument on it or is that --

Mr. Telford Taylor: No, I'm not Your Honor.

There's no need to here because this is a case from the federal courts and would seem to us a statutory and supervisory considerations are quite sufficient.

I did suggest --

Justice Byron R. White: What statutory consideration?

Mr. Telford Taylor: What statutory considerations?

There are no statutes relating directly to grand jury problem, Your Honor, no.

I was there -- what I had in mind there was the --

Justice Byron R. White: Is the analogy [Inaudible]

Mr. Telford Taylor: The Congressional attitude is suggested in 3500 which seems to us to apply by analogy here.

Justice Tom C. Clark: That is definitely the problem [Inaudible]

Mr. Telford Taylor: Pardon?

Justice Tom C. Clark: Do you think that is not [Inaudible]

Mr. Telford Taylor: The purpose of 3500 (Voice Overlap) yes, it seem --

Justice Tom C. Clark: -- and the government [Inaudible] does not have taken [Inaudible] together.

Mr. Telford Taylor: Well, it's a statement made on the record and in official judicial proceeding for the grand jury.

Indeed, it seems to us that this is -- is rather more eligible for submission to the defense even than statements made to government agents, where you have the problem of verbatim transcription.

Section 3500 has precipitated all these problems about what is a statement and what isn't, and whether a thing is sufficiently verbatim to be legitimately used from impeachment.

Well, you don't have that problem here because you got a closed witness on a graph of record.

It's as accurate as anything can be and this is the case where there is no real interest in secrecy left.

The witness has been exposed in the sense that he's been produced in court and has testified, what reason is there, why the defense shouldn't have access to that testimony.

Justice Tom C. Clark: That did not [Inaudible] reason any longer.

It began [Inaudible] perhaps does the -- perhaps they don't see how you could say they found [Inaudible] at any respect whatsoever by having [Inaudible] on the grand jury investigation.

Mr. Telford Taylor: Well, perhaps I've misspoken myself Justice Clark.

I don't at all mean to suggest that it in terms governs.

Justice Tom C. Clark: I understand.

Mr. Telford Taylor: It does manifest a Congressional policy that defendant should be given access to certain kinds of statements useful for impeachment.

We say those considerations are equally applicable to grand jury minutes, that the defendant has just as much needed them and for the same reasons.

Justice Abe Fortas: General, you get any comfort out of Rule -- Criminal Rule 16?

Mr. Telford Taylor: I don't know Mr. Justice Fortas.

Justice Abe Fortas: Well, that the Rule provides that -- first, for general secrecy and otherwise a general opinion third clause [Inaudible] that may disclose, that is the current judge in the grand jury although when directed by the Court preliminary or in connection with the judicial proceeding or when committed by the Court to the effects of the defendant to punish her and grants may exist or mostly in dismissing indictment because that's prior before the grand jury specific part being the power given to the Court in -- really without much qualification in connection with the judicial proceeding.

Mr. Telford Taylor: Yes.

Yes Mr. Justice Fortas, I -- I wouldn't think that there is any question about the power of the Court to do this and the Rule would seem to bear that out.

I do right now, there remains a problem here in that -- and the grand jury minutes may be very loose in subjects they cover.

There may be need for some kind of screening on materiality but not on inconsistency.

Anything material to the case it seems to me once the witness has testified should be made available.

The only --

Justice Abe Fortas: I have another half of that question if may I ask you and that is this.

I note that the Government urges that if we go along with you in your attack on the failure to examine the grand jury transcript or failure --

Mr. Telford Taylor: Yes.

Justice Abe Fortas: -- to this defense counsel access to it, that proper remedy would be to --

Mr. Telford Taylor: Revamp.

Justice Abe Fortas: -- refer this, not to make it but to refer it, this specific matter to the prior judge.

Mr. Telford Taylor: Yes.

Mr. Justice Fortas, that's the very matter (Voice Overlap) --

Justice Abe Fortas: -- in your prior brief you don't really comment on that except to express your opposition to it and I'd be very interested in your views.

Mr. Telford Taylor: Well I think there are two reasons why that course of action is not suitable here.

It would be suitable if the Court should decide that only in camera inspection is called for.

But if as we contend this is a case where a particularized need has been shown and therefore the minutes should have been made available to the defense directly rather than for in camera inspection.

Obviously a remand is not going to resolve that problem.

The second one is even more fundamental and that is that one of the four witnesses here is a witness who testified in the first trial and then died and his testimony was read at the second trial.

Now, at the first trial, we had objected -- I beg your pardon at the first trial, we had requested his grand jury testimony and had been denied.

There's obviously no way that that error can be rectified now.

So we say for those two reasons, a remand is not sufficient.

Justice Abe Fortas: I don't understand that.

On the second trial, these witnesses grand jury testimony was granted.

Mr. Telford Taylor: No, it's actual testimony.

This testimony given at the first trial --

Justice Abe Fortas: I remember that, yes.

Mr. Telford Taylor: -- was granted a second trial.

Justice Abe Fortas: I see and you had not had access.

Mr. Telford Taylor: Yes.

Justice Abe Fortas: So that to give you the relief that you want if that witness is on a subsequent trial and that witness' testimony could not be used --

Mr. Telford Taylor: Yes sir.

Justice Abe Fortas: -- or this right to dismiss the case for this as fatal error for all the time, is that right?

Mr. Telford Taylor: Right.

If the Government can prosecute the case again without this witness, that's another matter.

Chief Justice Earl Warren: Mr. Lewin.

Argument of Nathan Lewin

Mr. Nathan Lewin: Mr. Chief Justice, may it please the Court.

Petitioners have been convicted of violating the general conspiracy statute, 18 U.S.C. 371 and under this Court's limited grant of certiorari, three separate grounds for reversal are presently being asserted.

Petitioner's contentions have been presented in their briefs and in ours and in petitioner's oral argument in the following sequence.

First, they've argued that the indictment under which they were charged was defective in that it accused them of having defraud, conspire to defraud of the United States whereas the body of the indictment alleged a conspiracy which did not require for defraud, in other words a conspiracy to commit an offense against the United States.

Second, petitioners have argued that their convictions are unconstitutional because Section 9 (h) of the Taft-Hartley Act which imposed the underlying affidavit requirement was an impermissible exercise of legislative power.

And their third contention has been that their trial was improperly conducted in that procedural error was committed with respect to the grand jury testimony of government witnesses.

Before discussing each of these three contentions, I think it is important to call to the Court's attention the difference between each of them in terms of the result -- of the resulting judgments if any of them should be sustained.

Taking first the grand jury contention, if there were a reversal on that ground alone that would mean at most a new trial under the present indictment.

And as I will try later to explain our view of course that a remand would be sufficient, but at most it would mean a new trial under the present indictment.

It would leave undetermined the question whether the indictment is valid and whether a prosecution such as this one is constitutionally permissible.

The constitutional challenge is the other extreme because that would, if successful, bar any further prosecution of these petitioners for the offense alleged in the indictment and the first ground asserted by the petitioner is the alleged flaw in the indictment caused for it to have a different result and that the evidence could then be represented to a new grand jury which despite the lapse of the limitations period would be entitled to enter a fresh indictment and then under charging an offense to commit to United States under 18 U.S.C 3288 which authorizes re-indictment in case of a flaw in the indictment after the lapse of limitations period and there would then be a new trial.

Now I call these differences to the Court's attention because it appears to us that from the vantage point of sound judicial administration, the three issues before the Court might well be considered in the order in which they would most probably obviate any need for unnecessary duplication or repetitive later trials since the -- both the constitutional issue and the statutory questions would not be mooted simply by remanding the case for a new trial.

In other words, basic to the right to try these petitioners is the constitutional challenge and if as we believe there's no merit to that constitutional claim, it would nonetheless be vain to retry them under the present indictment if there was still a cloud over the question whether they could be tried for conspiracy-to-defraud.

Consequently, if the Courts please, I should like to discuss first the constitutional claim which really our basic proposition is, that it is not a constitutional claim at all or at least that the resolution of the constitutional issue would not affect the validity of the petitioner's convictions.

Then second, the alleged flaw in the indictment, and finally, the district judge's treatment of the motions regarding the witnesses' grand jury testimony.

Now we particularly urge that the questions be considered in this order, because the convictions presently before the Court are the result of a second trial of these petitioners and it is now almost ten years since the indictment was filed.

Our position of course is, that none of the three contentions warrants reversal of the judgments of conviction.

That we also believe that it would not be in the interest either of petitioners or of the Government to remand this case or in the interest of judicial administration and the conservation of judicial resources to remand this case without -- if the case will remand for a new trial without removing the clouds that are presented by the constitutional issue and by the statutory claim.

I turn therefore first to the constitutional issue.

The Taft-Hartley Amendments of 1947 added to the National Labor Relations Act, Section 9 (h), was in turn repealed the 1959 with the Landrum-Griffin Act of that year.

That provision states that the National Labor Relations Board shall make no investigation and issue no complaint on behalf of members of the union or on behalf of the union itself, unless that union or its members or its officers have filed with the Board affidavits of each of the officers stating that he is not a member of the Communist Party or affiliated with the party.

Petitioners were convicted on a one-count indictment which charged them with having conspired in violation of the General Conspiracy Statute to defraud the National Labor Relations Board by filing -- first, by filing false affidavits, second, obtaining a certificate of compliance and then third, using the facilities of the National Labor Relations Board with knowledge of the underlying fraud.

Their claim is that because Section 9 (h) is allegedly unconstitutional, that constitutional infirmity vitiates their convictions.

Our principal position is that the constitutionality of Section 9 (h) does not affect the validity of petitioner's convictions at all.

It is important in this regard to consider what Section 9 (h) commands to the extent that it has a command and what the petitioners are convicted of having done.

Section 9 (h) conditioned the availability of the facilities of the National Labor Relations Board on the filing of non-Communist affidavits by union officers.

It said to officers in effect, if you want your union to enjoy the facilities of the Labor Board, you must be prepared to file non-Communist affidavits.

To the extent that Section 9 (h) could be violated at all, it can be said something violated, it had a self-executing sense.

In other words, if officers violated it, if they've failed to file affidavits, their union was barred from enjoying the facilities of the National Labor Relations Board.

But the petitioners were not charged in having violated Section 9 (h) which could be done by not filing affidavits with the Board.

What they were charged with was a separate and distinct offense which was conspiring to defraud by filing false statements with the Government upon which governmental action was taken.

Their constitutional claim, if it were sound, meant really nothing more that they were entitled to challenge Section 9 (h) by ignoring the statute, by not filing any affidavits, but it did not mean that they could lawfully commit an entirely separate and distinct offense.

Assume for example, hypothetically, that petitioners on this record had decided instead of that -- instead of filing false affidavits, they would prevent the impact of Section 9 (h) upon their union by bribing the official of the National Labor Relations Board who was in charged of the records of the Board with regard to such affidavits, and bribing him to have him alter the records in order to reflect that they had filed the affidavits.

It seems entirely clear to us that it would not be a defense to bribery prosecution in such circumstances for them to say “Oh we didn't have to file any affidavits at all.”

Their lawful response to the -- to the requirement that they file affidavits if they had a constitutional challenge to that requirement, was not to file the affidavits and to do what the plaintiffs did in American Communication Association versus Doud, which is the case in which this Court did pass in a proper procedural context on the constitution -- very same constitutional challenge make here by petitioners.

In other words --

Justice Potter Stewart: How did the issue arise in the Doud, did they refuse to file anything (Voice Overlap) --

Mr. Nathan Lewin: The union and the officers used to file affidavit -- and then when the National Labor Relations Board failed to place the union's name in a representation election, they've brought suit --

Justice Potter Stewart: Against the Board.

Mr. Nathan Lewin: -- against the Board to require the Board to make the appropriate measures, taking appropriate steps.

Justice Hugo L. Black: Suppose this affidavit -- suppose this law had required that the prerequisite getting attention by the Union, by the Board?

The Union swears that it has nobody in it, they believed in the Christian religion and they must state that they do not believe in the Christian religion.

Are you saying that under those circumstances if they filed a false statement they could be convicted?

Mr. Nathan Lewin: We think Mr. Justice Black, yes.

That the proper response in a -- in our legal system is to challenge the obligation, not by committing another offense, a distinct offense which is filing a false statement or committing fraud but by not answering at all.

Justice Hugo L. Black: Now let's assume that I don't know which position you are taking for the Government, let's assume that such a requirement would be void under the First Amendment.

Is it your position that even then they could be tried for perjury if they are tried for what you're trying them here for confers to the committed perjury, if they had sworn falsely of that legit leave?

Mr. Nathan Lewin: We think --

Justice Hugo L. Black: Assuming now that it is void, the law is void.

Mr. Nathan Lewin: Yes.

Well, we think yes.

We think that -- just as they could be tried, just as people in this position could be tried for any other crime.

I think really an answer with (Voice Overlap) response to your particular crime (Voice Overlap) --

Justice Hugo L. Black: Not -- which will be charged there -- would be given the government the wrong information with reference to their religious beliefs and we're assuming now that the government doesn't have the right to make any such inquiry.

Mr. Nathan Lewin: That --

Justice Hugo L. Black: The answer would be the same.

Mr. Nathan Lewin: Well, Mr. Justice Black, it seems to me their response to the unlawful inquiry would be not to answer and then, if it --

Justice Hugo L. Black: But if they did answer through here and then you could try them for perjury even though it was inquired -- requiring them to do something which the constitution forbade.

Mr. Nathan Lewin: No, I think Mr. Justice Black, it might will be a defense if you say if they -- will require to answer through fear or through some form of coercion but if they have --

Justice Hugo L. Black: I am talking about the coercion of the law.

Mr. Nathan Lewin: Yes.

Justice Hugo L. Black: Nothing but the law.

I'm not saying if the Government could have [Inaudible] they just passed the law until you've got to do it or as you go to jail.

Mr. Nathan Lewin: We think their obligation is just not to answer, not -- and they may not answer falsely --

Justice Hugo L. Black: And do -- do you have to make them draw and guess about that, those answers and then they can be tried even though they couldn't be tried for not answering it at all, because it --

Mr. Nathan Lewin: Yes, Mr. Justice Black because we think that they've committed a separate offense, we think that that --

Justice Hugo L. Black: I -- I was just trying to find that if that was your first argument.

Mr. Nathan Lewin: Well, that is our argument.

General Taylor has said that our contention is in line with your question Mr. Justice Black that if it -- if a government inquiry is authorized by statute, although it may be claimed to be unconstitutional, then if a person who's asked that question, he can be put to the choice of either answering it or challenging it by not answering it, but may not answer falsely.

Now we think that's -- that's precisely right, he may not answer falsely.

He may not -- he may not shoot the interrogator.

He may not bribe the interrogator and we think he may also not answer falsely.

Each one of those is a separate offense which --

Justice Hugo L. Black: Of course if he didn't answer, I'd assume he could be tried or commit a -- convicted of a crime, isn't it?

Mr. Nathan Lewin: Under this statute Mr. Justice Black, there is no --

Justice Hugo L. Black: Not in this particular one but it would mean the same thing if it was a crime.

Mr. Nathan Lewin: Oh, that they didn't answer but then he would have the constitutional claim then he could assert his constitutional claim and we think under our system, that's what a -- that's what somebody who was subject to an unconstitutional request must do.

He must challenge it by not answering or by taking whatever steps, whatever lawful steps, the minimum steps in terms if not committing other offenses that are available to it.

Justice William J. Brennan: Well I gather this will not go through as far that there is any finding with these records to actually date [Inaudible] Let's assume that someone have been filed and executing these files for [Inaudible] I gather your argument goes far down to each place, in that place that I made, it's going to constitute, but nevertheless that -- part of me that, the prosecution under this indictment should not have brought from 1956 was not.

Mr. Nathan Lewin: I think Mr. Justice Brennan, it would have been possible -- it would not have been -- it wouldn't have been void, I don't think I --

Justice William J. Brennan: Wide as the matter to get it done.

Mr. Nathan Lewin: Yes, I think it would have been constitutionally permissible.

Justice William J. Brennan: Your argument is not withstanding before the [Inaudible] nevertheless I think the affidavit -- they're prosecuted before the days of [Inaudible].

This prosecution would then began to --

Mr. Nathan Lewin: Yes sir because it was a false statement and because the petitioners could have raised their constitutional claim by simply not filing any statement and it did give them, the fact that the statute might be unconstitutional did not give them a light --

Justice William J. Brennan: I think [Inaudible]

Mr. Nathan Lewin: Yes.

Justice William J. Brennan: Those arguments had been [Inaudible] results.

Mr. Nathan Lewin: Yes.

Justice William J. Brennan: Now that the [Inaudible] requirement that these statutes or these statements to [Inaudible] statements here.

Mr. Nathan Lewin: Well --

Justice William J. Brennan: That the [Inaudible]

Mr. Nathan Lewin: As a -- under the --

Justice William J. Brennan: As conspiracy-to-defraud statute.

Mr. Nathan Lewin: Well, under the conspiracy-to-defraud statute which is what this prosecution was brought under, I think the statement would have to be material because fraud would have been -- would be required.

And that means that the false statement would have to be material to something which the filers are attempting to obtain.

Under 1001 on the -- well, I'm sorry I think I would have to insert on 1001.

Justice Potter Stewart: Was this under 1001?

Was it a conspiracy to violate 1001?

Mr. Nathan Lewin: No.

Justice Potter Stewart: It was not?

Mr. Nathan Lewin: No.

This is the conspiracy to violate --

Justice Abe Fortas: That's the point of --

Mr. Nathan Lewin: That's right.

We think the -- our argument in this regard is really -- makes this case very similar for example to this Court's decision in United States versus Williams, which involved a -- the question, the validity of a perjury charge, made against a witness who had testified allegedly falsely in a criminal trial on an indictment which did not as this Court held state of federal offense.

Now presumably the Court in that case, in the Williams case, did not have in one sense jurisdiction.

They couldn't proceed to try that case and yet, witnesses who appeared before it, if they were to make that kind of a challenge, certainly couldn't even contest the Court's jurisdiction before they were able to testify.

And yet this Court held in Williams that that did not give them the option of committing the entirely distinct and separate crime of perjury.

The Kapp and Kay cases are not as General Taylor suggested, separate branches of our argument, they were all -- we believe they were all welded in, they're part of the very same proposition.

In Kapp, the defendants had been charged with conspiring to defraud the United States by submitting false claims under the Agriculture Adjustment Act.

Presumably, those claims were nullity.

The Agriculture Adjustment Act had been declared unconstitutional by the time the case -- that the validity of that indictment was determined by the District Court.

And yet this Court held that despite the fact that the Agriculture Adjustment Act was unconstitutional, that did not give the defendants in that case a license to commit a separate and distinct crime.

Essentially, at the heart of our argument is the very same proposition we think -- or the very same broad principle which is -- which underlies this Court's decision in the United Mine Workers case, which is that there are certain lawful responses which may be made to demands or requests of courts or governmental agencies which may be impermissible, whether because of lack of jurisdiction or whether because of a constitutional challenge, and the permissible responses are not to be the -- either not to respond to the demand or to take whatever minimum steps are necessary in order to present the constitutional claim in appropriate litigation.

But a constitutional challenge does not, under our system, give the person who is subject to the allegedly unconstitutional demand, the option of committing a whole range of -- a broad range of crimes, simply in order to avoid the impact of what he claims is an unconstitutional request or demand and that we think is what is in issue here.

If the Government -- if the Labor Board under Section 9 (h) did not have the power to demand these affidavits, petitioners' option was not to submit affidavits.

They could not bribe the Labor Board employee nor could they submit false affidavits.

A court which has no jurisdiction may not under the United Mine Workers case, cavalierly disobey.

An agency which has cons -- no constitutional power, may not under this Court's decision in Kapp be cheated.

A court which is trying to charge which did not amount to a federal crime may not under Williams be lied to and there are many cases which we've cited in our brief or considerable number of case that we've cited in our brief, which involved grand jury's calling witnesses without informing them of their privilege against self-incrimination and then putting questions to them.

In one sense, the questions certainly in those cases are unauthorized.

The witness, who is ignorant of his privilege against self-incrimination, presumably doesn't have the option of refusing to answer.

He doesn't know what it is he can do and what his lawful rights are.

And yet, courts have held that a false answer under those circumstances amounts to perjury.

Justice Hugo L. Black: Have they held that in reference to questions involving First Amendment for you?

Mr. Nathan Lewin: I don't know of any case.

Justice Hugo L. Black: Do you conceive that there's any difference in that kind of case?

Mr. Nathan Lewin: Well, I think it might be different in First Amendment case if possibly Mr. Justice Black.

In other words, possibly the mere obligation of answering of any kind if a witness is ignorant, certainly if he's ignorant of his various options, he ought not in any way to be penalized for what it is that he's answering.

But I think in this case, even if it involved First Amendment rights, the petitioners had the advice of counsel, they knew what it is that their choices were and indeed, I don't think that there's probably no doubt that they consciously chose to file affidavits rather than not file them and make a constitutional challenge in an appropriate proceeding because they knew that it -- they may be appropriate challenge, it would then -- have been rejected under the Douds case.

So that they -- they made in this case a very knowing choice when they determined that they would file false affidavits rather than not filing the affidavits at all.

I think it's possible that in certain First Amendment context if a -- if they -- a person who has asked the question does not have the advice of counsel and does not know what his options are it might very well be unfair or possibly constitutionally impermissible then to prosecute him because the answer turns out to be false, but I don't think that's this case.

On the merits of the constitutional claim, I would like to make these two points, after noting.

First of course, that the ground that the majority of the Court or in Douds determine that Section 9 (h) was constitutional or was not a bill of attainder, was of course pro tanto overruled in Archie Brown.

In Douds, the Court adverted to the fact that 9 (h) was not a bill of attainder because it operated only prospectively and to that extent, this Court has overruled that portion under Douds holding in the Archie Brown case.

However, I do think it is important to note that in the bill of attainder cases and particularly in the Lovett case, there was heavy emphasis placed by the Court on the question of whether what Congress was doing amounted to punishment and it was held in Lovett that notwithstanding the fact that the sanction was not a criminal one it nonetheless did amount to punishment.

In this case, in 9 (h) we believe that the Court in Douds held that it was the effect of the affidavit requirement was a discouragement and that's the Court's language and we submit that to that extent, 9 (h) is distinguishable from the successor statute in Section 504 of the Landrum-Griffin Act because it is merely a discouragement and this Court in a footnote in the Aptheker case, made that very distinction between Douds and the statute that was before them in Aptheker.

And we think that that would be a ground for distinguishing 9 (h) from the Archie Brown statute in bill of attainder terms.

With regard to General Taylor's reference to this Court's recent decision in Elfbrandt, of course this indictment did not allege specific intent because what petitioners were being charged with was not mere membership in a Communist Party or anything that would have required a showing of specific intent.

They were charged with having lied in the statements of the Government.

They said to the Government that they had -- they were not members of the Communist Party.

The only material question is whether they were members of the Communist Party and whether that statement if they were not was a lie.

Consequently specific intent in the indictment or in the proof was a -- would have been any relevance.

Justice William J. Brennan: And a relevance to the [Inaudible]?

Mr. Nathan Lewin: Yes, right.

We think it must be knowing because otherwise the statement isn't false, presumably somebody who doesn't know that he's a member of the Communist Party and he said that he's --

Justice William J. Brennan: Is it the members [Inaudible] --

Mr. Nathan Lewin: Right, Mr. Justice Brennan.

That's right.

Chief Justice Earl Warren: Why would they charge in this case for the violation -- conspiracy to violate this Act?

Mr. Nathan Lewin: The real reason they weren't charged Mr. Chief Justice is, that there were some doubt -- apparently the time that the indictment was drafted whether an indictment charging them both with conspiracy-to-defraud and conspiracy to violate 1001 might not be duplicitous.

Now of course, there have been many cases in this Court and other courts that have held that it would not be duplicitous, but I think (Voice Overlap) access or cautions --

Chief Justice Earl Warren: Or that they just take to a simple way of doing it and charge them with a conspiracy for violating this Act.

Mr. Nathan Lewin: I'd like to turn to that next with regard to the --

Chief Justice Earl Warren: Alright.

Mr. Nathan Lewin: -- if I may on the right to --

Chief Justice Earl Warren: Whatever you wish?

Mr. Nathan Lewin: Right.

I'm just trying --

Chief Justice Earl Warren: Yes.

Mr. Nathan Lewin: With regard to the petitioner's second contention which is precisely that they should have been charged with 18 U.S.C. 1001 rather than with a conspiracy-to-defraud.

We think the short answer is that the indictment on its face charges more than a conspiracy to violate 1001.

It charges a conspiracy to violate 1001, plus, further Acts committed in pursuance of a fraud on the United States.

And for that reason Mr. Chief Justice, we think that if the petitioner's crime were properly defined, it would really be -- they conspired to violate 1001 and they conspire it to defraud.

It was one conspiracy but its objectives were -- went beyond nearly filing false affidavits.

Justice Byron R. White: Mr. Lewin, can you violate 9 (h)?

Mr. Nathan Lewin: Only in the sense that 9 (h) has the sanction of not providing Board itself (Voice Overlap) it's not if you don't violate.

Justice Byron R. White: But in no -- in no event could you have charged him with a conspiracy to violate 9 (h)?

Mr. Nathan Lewin: I don't think so Mr. Justice White, because all that -- all that 9 (h) does is it tells the Board, you may not offer your facilities to such and such unions.

Justice Byron R. White: Unless something happened.

Mr. Nathan Lewin: Unless something happened.

So I don't think anybody -- any individual can really violate 9 (h) in that sense.

Justice William O. Douglas: Would perjury lie?

Mr. Nathan Lewin: Well, if -- I think under the perjury statute, this would have to be before tribunal competent jurisdiction.

I'm not sure whether affidavits filed on those circumstances could be perjurious.

And I think -- in addition Mr. Justice Douglas that 9 (h) provide that the false statements, 18 U.S.C. 1001 will apply to these statements.

So even a perjury were available, I think that really would be no occasion ever to use a perjury charge.

Justice Abe Fortas: Did the indictment here specifically refer to 1001?

Mr. Nathan Lewin: The indictment Mr. Justice Fortas, did not refer to that one.

Justice Abe Fortas: Because as I see this -- the juror saying maybe that this contained -- the specs that the charge here is a conspiracy-to-defraud the United States of the services of the NLRB by falsely filing an -- by filing a false affidavit under 9 (h), and I don't see -- I'm not sure that I understand why you referred to 1001 in your last statements.

That is to say that is it or is it not the fact that the fraud that you're alleging -- you alleged in the indictment of United States was defraud under 9 (h).

Mr. Nathan Lewin: Yes.

Justice Abe Fortas: And that the means of the overt act was the -- at least one of the over acts was the filing of this false affidavit.

Mr. Nathan Lewin: Yes sir.

Justice Abe Fortas: Now, the other question I want to ask you is this.

General Taylor referred to the question as to whether they can -- as to whether the constitutional issue is presented here in terms of the standing of the petitioners to raise that issue.

I take it that your position is that it's not the question of standing, it is the question of the irrelevancy.

Mr. Nathan Lewin: That's precisely our position.

Justice Abe Fortas: (Voice Overlap) of the constitutional issues, is that right?

Mr. Nathan Lewin: That's right, we're saying no matter how that's decided, it does not affect these convictions just as it would not affect the bribery conviction or result conviction on -- if it were -- if it that would be --

Justice Abe Fortas: So you're charging a conspiracy under 371 to the defraud the United States by means of filing false affidavit with purpose of obtaining the services of the National Labor Relations Board under 9 (h) --

Mr. Nathan Lewin: Yes sir.

Justice Abe Fortas: -- isn't it?

Mr. Nathan Lewin: That's right.

We think that the phase of the indictment as a matter of fact, shows that what was involved here was much more than a conspiracy merely to violate 1001 or to file false affidavit.

Justice Potter Stewart: Was that more than or less than, it was a different problem, you don't mention 1001 in the event that --

Mr. Nathan Lewin: We don't mention 1001 but well -- it was - in the course, Mr. Justice Stewart, in the course of committing their greater conspiracy that conspirators we think violated -- could very well been charged with having violated 1001.

Justice Potter Stewart: But they weren't charged with that.

Mr. Nathan Lewin: They were not charged with that, but the indictment, if I can just point to pages 2 and 3 of the indictment, it's entirely clear from the face of the indictment that there were three parts to the conspiracy.

Only the first part of the conspiracy as alleged was the filing of false affidavits.

The second part, and that's alleged in an entirely separate paragraph which appears on page 3, was that the cons -- the conspirators, the petitioners in this case and others, induced the Labor Board to issue certificates of compliance based on these false affidavits.

And the third paragraph is that the conspirators then may over a period of use of the Board's facilities knowing that the underlying affidavits had been false and fraudulent.

Justice Byron R. White: Was there any advantage to the Government of charging with the -- under the fraud section and under this -- this has a violation of 1001?

Mr. Nathan Lewin: I can think of the -- I can think of none --

Justice Byron R. White: Well, you may not or you may not have been may or had some worries about charging the folks but you could have taken either one.

Mr. Nathan Lewin: We could have taken either one --

Justice Byron R. White: So why do you think --

Mr. Nathan Lewin: -- I think it's possible --

Justice Byron R. White: Why did you choose, what sounds like a more difficult course.

Mr. Nathan Lewin: Well I think it more accurately describes what the conspirators did really.

They didn't.

They -- had they -- had they've been violating 1001, then presumably and arguably --

Justice Byron R. White: Well you have not -- you certainly agree to that part of what they did with the violation of 1001.

Mr. Nathan Lewin: That's right, but I think that can only --

Justice Byron R. White: So you could have charged them with that and what about penalty wise, is that the same penalty --

Mr. Nathan Lewin: Same penalty, I think arguably --

Justice Byron R. White: But there's no --

Mr. Nathan Lewin: -- they might have contend --

Justice Byron R. White: But there's no fraud connotation to this 1001.

Mr. Nathan Lewin: Right, but they might then have contended and I don't think it would have been sound but they might have contended that their conspiracies were separate conspiracies then for each year.

They might have argued well you can't charge this with one overall conspiracy when each year we've been conspiring to file false statement.

Justice Byron R. White: Would you feel -- do you have to cut in to some prior cases in this Court to say that you've been -- that you can maintain this indictment and yet the fact is that it does charge a -- an actual facts amount to a violation of 1001?

And 1001 isn't -- doesn't necessarily require proof of fraud.

Mr. Nathan Lewin: Right, but we don't think we have to cut into any -- any statement --

Justice Byron R. White: You don't think any -- you think General Taylor is erroneous?

Mr. Nathan Lewin: Oh no, because the Bridges case which is I think the only case --

Justice Byron R. White: You don't think that that's into that at all?

Mr. Nathan Lewin: No, the Bridges case was as Mr. Justice Stewart pointed out a case in which the question was with the War-time Suspension of Limitations Act which extended a period of limitations for fraud against the United States would apply to a case in which a conspiracy-to-defraud was charged in which the whole conspiracy-to-defraud consisted only of the commission of substantive offenses, various substantive offenses which is making a false statement to a naturalization officer, obtaining a false naturalization certificate.

And that was all that could -- all that the conspiracy there charged involved.

It's distinguishable from this case in two respects.

First of all, the Court was entirely clear on Bridges that it was construing the War-time Suspension of Limitations Act which the Court there said was -- should be given very conservative construction, what amounts to a fraud on the United States for purposes of the War-time Suspension of Limitations Act, is not the very same thing as would be a fraud for purposes of the conspiracy to defraud statute.

Really, I think what the Court was concerned about in Bridges was the fact that almost any conspiracy-to-defraud encompasses lots of subs -- commission of substantive offenses.

An author of the law review article in -- which is cited in our brief has maintained that that -- all of the cases involving conspiracy-to-defraud which have been brought could be brought as conspiracy to commit substantive offenses case.

And yet in this case, we believe there was more to the conspiracy than merely the commission of the substantive offense of violating 1001, and that we think is the second distinction from Bridges.

In Bridges, the conspiracy-to-defraud encompassed and nothing more just the commission of various substantive offenses.

In this case, the second and third parts of conspiracy alleged in the indictment didn't involve any substantive offense at all.

There is no substantive offense that says that you're committing an offense against the United States if you induce the Labor Board to issue to you a certificate of compliance based on somebody else's or on your own, false non-Communist affidavit.

Justice Byron R. White: Would you say -- that would charge the violation of 1001 in any event?

Mr. Nathan Lewin: We say that the facts alleged in the indictment amount to a violation of 1001 and more, yes.

Justice Byron R. White: And what's this -- what's your answer to these arguments about prejudice?

Mr. Nathan Lewin: Well, our first answer of course is that if we could properly charge it then, even if they weren't prejudiced that there was -- its lawful prejudice.

I mean, we think that this is really what -- this really amounted to a conspiracy-to-defraud not merely to conspiracy to violate 1001 and our second response is, that the prejudice exists in any case in which a defendant is charged with a greater offense and convicted of a lesser.

Now --

Justice Byron R. White: What if you're wrong -- what if you are wrong in your argument is there -- and what if it sound that the Government to this indictment, they only thing this indictment can be held with charges with the conspiracy to violate 1001?

Mr. Nathan Lewin: Then we think that the error was not prejudicial and that that -- because, the petitioners and the defendants in this case knew exactly from the fact spelled out very carefully indict -- in the indictment, what they were being charged with.

And at most, what they were charged with was violating 1001 and going on and doing other things.

If they were convicted only of violating 1001, then they are prejudiced is no greater than being convicted of a lesser included offense in -- when they're charged with a greater.

The judge --

Justice John M. Harlan: General Taylor said there might be a statute of limitations question.

Mr. Nathan Lewin: I haven't seen the statute of limitations question in petitioner's brief really and I really don't know exactly what it would be.

It appears -- it appears to us really then Mr. Justice Harlan that a conspiracy going lasting into a limitations period of this sort, whether it's a conspiracy-to-defraud or a conspiracy to violate 1001 --

Justice John M. Harlan: Is the same?

Mr. Nathan Lewin: -- would involve the same proof, and that we just don't see that there's any difference in terms of limitations between each other.

Justice Hugo L. Black: What is the exact fraud of things in crimes?

Mr. Nathan Lewin: The fraud in this case Mr. Justice Black --

Justice Hugo L. Black: Fraud.

Mr. Nathan Lewin: -- the fraud was inducing the Labor Board to issue on the basis of false affidavits, a certificate of compliance and then using services of the Labor Board which under the statute, if -- let's assume constitutional, the petitioner union was not entitled to.

Justice Hugo L. Black: Well, what -- was that -- that this fraud occurred, is he just violated it?

Mr. Nathan Lewin: Well (Voice Overlap) not necessary --

Justice Hugo L. Black: -- violated the Act in itself is due to fraud.

Mr. Nathan Lewin: Not necessarily Mr. -- it's possible it seems to us to file false statements under 1001 and then go no farther.

Then never -- assuming -- if one union officer for example may file false statement --

Justice Hugo L. Black: Well, I think that the government was, wasn't it, to prevent itself from being defrauded with that false affidavits?

Mr. Nathan Lewin: That's true.

Justice Hugo L. Black: And that's the case?

Mr. Nathan Lewin: No, because here, petitioners did more.

They didn't merely file a false affidavit.

They then went on and tried to use the false affidavits as a basis for obtaining -- as the a basis for obtaining benefits which they actively sought.

Justice William J. Brennan: Mr. Lewin, how's the -- under this indictment, that file, they have approved that there are -- those two meetings I fact means that it is going to [Inaudible]

Mr. Nathan Lewin: Yes.

Justice William J. Brennan: Is it possibly contention?

Mr. Nathan Lewin: We think that we could still sustain a conviction for conspiracy to commit an offense.

Justice William J. Brennan: [Inaudible]

Mr. Nathan Lewin: Yes.

Justice William J. Brennan: Suppose they have to defraud this experience well that these questions --

Mr. Nathan Lewin: Oh, right. Well, I'm assuming from Mr. Justice Brennan's question that we didn't prove that they had any such intent that they ever sought that they just intended to filed false affidavits --

Justice William J. Brennan: Or it's the law [Inaudible] that they filed these affidavits under this. In fact that the contribution was [Inaudible]

Mr. Nathan Lewin: Yes, but we think a different -- a harder question would have been presented which is whether it would end up in prejudicial error to allow the case to go to the jury under the indictment charge of a conspiracy-to-defraud when the proof amounted only to a conspiracy to violate 1001, which would have been a different and harder question.

We think the proof here when it went to the jury was enough to sustain conspiracy-to-defraud.

Justice Hugo L. Black: Because he has conspiracy to defraud the Government are you making again the false affidavits and all that -- use the Labor Board (Voice Overlap) --

Mr. Nathan Lewin: And then using --

Justice Hugo L. Black: -- is that for all who stood here.

Mr. Nathan Lewin: Now, then using the Labor Board Mr. Justice Black.

Its like -- if I were to conspire with somebody else --

Justice Hugo L. Black: Could you conspire -- could you convict him for using the Labor Board just --

Mr. Nathan Lewin: No, that -- that's not a separate offense, but that's exactly what the conspiracy-to-defraud.

Justice Hugo L. Black: That's not what -- what if he called filing up one offense to one another and then on another and then on another, isn't it?

Mr. Nathan Lewin: Except that in this case Mr. Justice Black, we only -- there's a one count indictment and there's only a single conspiracy.

We weren't seeking the accumulate sentences like --

Justice Hugo L. Black: Why is there trouble that you are afraid you couldn't convict them in this statute because it's unconstitutional and you end this other to -- to get around.

Mr. Nathan Lewin: No Mr. Justice Black, because at that -- at the time this suit was brought the statute 9 (h) was constitutional and it had been held so and -- by this Court in Douds and I don't think there was -- there -- at that time merely been any thought that that Douds would be overruled.

And the -- that the only reason that this case was brought under the conspiracy -- under the conspiracy-to-defraud provision, we submit was that really what the petitioners did in this case was much closer (Voice Overlap) --

Justice William O. Douglas: What made you -- made you evidentiary problem as much more flexible obviously, isn't it?

Mr. Nathan Lewin: Not been a conspiracy to violate 1001 I think.

I mean if -- more or so than nearly violations of 1001, yes sir.

Although, even as to that there are cases -- I think we should tell that if you -- if you prove the conspiracy you can put in the same evidence even if you haven't alleged -- and so -- but it seems to us that the situation here is similar to that which would result for example I and another were to attempt to the District of Columbia of fraudulent birth certificate for myself, for the purpose of obtaining government employment or a driver's license.

Now, when I obtained the fraudulent birth certificate, I've committed one offense, but if that's part of a much larger scheme which is to obtain a false certificate which will then be used and I then intend to use it actively then I committed a much more -- much broader and more encompassing conspiracy than merely obtaining the false certificate.

Justice Hugo L. Black: Do you think you get in the area of the trouble we've had by the old Black-Burger doctrine?

Mr. Nathan Lewin: I don't think so Mr. Justice Black, because this is one conspiracy and one count and there was no attempt made in this case really either to pile up sentences or to accumulate punishments or in any way to fragmentize what would be a single -- a more of --

Justice Hugo L. Black: It was like it's making it as an essential part of your crime, you couldn't convict him without proving a violation of 9 (h), could you?

Mr. Nathan Lewin: We couldn't convict him without proving that is -- that a statement was false and that --

Justice Hugo L. Black: Yes, and that's what (Voice Overlap) --

Mr. Nathan Lewin: -- and it was required.

Justice Hugo L. Black: -- prohibit this.

So what you're doing is taking a -- an essential -- making it as an essential part of your crime and just adding another word used dramatical words to it, that fraud and said, we construed it up, maybe we can't constitute him under this or do you admit that you can't do it practical, don't you?

Under the latest case, you certainly made it and you take an essential fact, something that you've got to prove and you can't convict him without it and if you'd known that that essential part is unconstitutional.

Mr. Nathan Lewin: Haven't -- we've gone -- but we did -- if we did anything in this case Mr. Justice Black --

Justice Hugo L. Black: But can you convict without that part?

Mr. Nathan Lewin: Without 9 (h).

Justice Hugo L. Black: That's right.

Mr. Nathan Lewin: Well, our position is that we -- that even if 9 (h) were unconstitutional we could convict, yes.

Yes sir.

That -- that's what I'm --

Justice Hugo L. Black: What I', talking was the -- if 9 (h) was not on the book, you still say you could convict?

Mr. Nathan Lewin: No, if 9 (h) were not on the books, of course then --

Justice Hugo L. Black: Would you say if it's on the book and unconstitutional, you can?

Mr. Nathan Lewin: Until such time as the Labor Board does not have the authority to demand these affidavits, we think those who are subject to it --

Justice Hugo L. Black: Well it doesn't have the right to demand if the Act is unconstitutional?

Mr. Nathan Lewin: No sir.

Not as of that time.

The question is of course, what happens prior to the time if the Act is declared unconstitutional and it does so under color if you like of constitutional authority.

Justice William J. Brennan: Is it what you [Inaudible] in this record?

Mr. Nathan Lewin: Yes, they've -- well, there was testimony -- well from I think a total of ten witnesses, each identifying what these petitioners and witnesses --

Justice William J. Brennan: [Inaudible]

Mr. Nathan Lewin: No, because I think they would all have gone to the question of whether they were members of the Communist Party.

The only additional -- really the additional evidence that we got in and if -- it cast an added burden on this Mr. Justice Brennan, because we were required to prove fraud.

And the only additional evidence that came in as a result to that was the use of that -- the use of the Labor Board.

Justice Byron R. White: [Inaudible]

Mr. Nathan Lewin: Candidly, if I've been told that the reason was -- that there was doubt as to whether both 1001 and the conspiracy-to-defraud could be charged in the same indictment.

And it was because of the fear of -- that this would be the --

Justice Byron R. White: [Inaudible]

Mr. Nathan Lewin: We could have taken --

Justice Byron R. White: [Inaudible]

Mr. Nathan Lewin: I don't know.

I can only say it seems in retrospect it could have been an unwise choice but I --

Justice William J. Brennan: Really unwise unnecessary (Voice Overlap) --

Mr. Nathan Lewin: Unnecessary --

Justice William J. Brennan: You were there, weren't you?

Mr. Nathan Lewin: No, I was not there.

Chief Justice Earl Warren: How do you distinct [Laughter] -- how do you distinguish Bridges?

Mr. Nathan Lewin: We distinguish Bridges Mr. Chief Justice on two grounds.

One -- the first ground is that the Bridges case was concerned as the Court made entirely clear that with the construction of the War-time Suspension of Limitations Act.

It said this was a statute which had been opposed for a very limited number of cases. In other words -- and said it was -- it should be given conservative interpretation.

And the question was, whether Acts such as those alleged in the indictment in Bridges, amounting to a fraud within the meaning of that Suspension of Limitations Act and the Court held that they did not amount to a fraud within the meaning of that Act.

Now have the Court held as petitioners now contend that that could not even have amounted to a conspiracy-to-defraud at all, presumably the Court could have -- or petitioners in that case would have been moved to dismiss the indictment altogether as they did here.

The Court didn't dismiss the indictment in Bridges.

It didn't say it was -- it improperly charges an offense.

It said only that it did not come with the union Suspension of Limitations which that very limited statute provided.

And our second ground for distinguishing Bridges is that on fact, Bridges really did not involve anything more than a conspiracy to commit three substantive offenses and there was nothing more alleged in the conspiracy count then that the conspirators had, as part of their conspiracy committed each of those three substantive offenses.

In this case, the second and third portions of the conspiracy are not substantive offenses at all.

And for that reason, we think it's properly charged them as fraud on the United States and not merely a substantive offense.

In addition, we think that it's entirely clear not only from the first portion of the indictment but from the overt acts which are alleged.

That much more was charged in the indictment than a conspiracy to violate 1001.

Overt acts, 4, 7, 14 and 15, all deal with the use of National Labor Relations Board facilities.

Now, had we charged as petitioners now contend in the indictment, nothing more than a conspiracy to file false affidavits, it would be hard to see how the testimony or the agreement that the -- signatures of various conspirators to National Labor Relations Board documents would be overt acts in furtherance of that conspiracy.

So altogether, we submit, it's quite clear that the base of the indictment charged a conspiracy-to-defraud.

Now petitions also contend well that no conspiracy-to-defraud could have been committed here because the National Labor Relations Board does not have the power to look behind the truth of these affidavits and then to place the union in decompliance under this Court's decision in the Leedom and Mine, Mill case.

How we think that looks at the whole regulatory scheme from the wrong point of view.

The question isn't whether a -- the Labor Board after at false affidavits have been filed had the power to go back and determine whether they're true.

The question is that as of the time these affidavits are filed, as of the time the representation is made, would the Board be acting if the truth were told in those affidavits?

And the answer is entirely clear that the Board under 9 (h) would not have the power to act if the truth had been told in the affidavits.

If these petitioners had signed an affidavit which under the proof here would have been a truthful affidavits stating that they were members of the Communist Party, the Board could not have gone ahead and offered them the services and facility.

Consequently, it's the false statement at that juncture which set the governmental operation into action and did so falsely and fraudulently.

Justice Hugo L. Black: May I ask you about the hypothetical case which seems to me it might get what you are arguing, I may be wrong.

Suppose the Government would it make it a crime, murder -- to murder a government employee and that was held unconstitutional on the ground that they have the right to the statement.

The Government then has the statute that said if you defraud it of the services of its employees and be convicted of a crime, punishable just like murder.

Suppose that -- they did exactly this man on the ground that if he'd done this to defraud the Government and defrauded the Government or the use of its own employees, could he be prosecuted then?

Mr. Nathan Lewin: Well, I (Voice Overlap) --

Justice Hugo L. Black: They -- you've had defraud.

Mr. Nathan Lewin: Yes, you'd have defraud but (Voice Overlap) --

Justice Hugo L. Black: -- the Government if [Inaudible] services and you could allege that that's what he did of course.

Justice William O. Douglas: The case that helps you most is the one we haven't cited and that's the Chico Bridge cases uses opinion in 308.

Mr. Nathan Lewin: Well, we like to use that.

I haven't seen that Mr. Justice Douglas and I'd -- we'll be glad to use it but it doesn't -- I -- Mr. Justice Black in response to your question, I'm not sure whether your statute -- the two statutes are interrelated.

In other words, I -- supposing that the fraud, the frauding of somebody of the services --

Justice Hugo L. Black: No, but he did it to defraud the Government of his services, they charge it and made it a crime.

Mr. Nathan Lewin: Yes.

Justice Hugo L. Black: And you split it up in crimes like that.

Mr. Nathan Lewin: Well, I --

Justice Hugo L. Black: What would you say about [Inaudible]

Mr. Nathan Lewin: Well if the man had been tried and I think (Voice Overlap) well, right.

If he had been tried then I don't think he could be tried up for the very same facts second time under that new statute.

Justice Hugo L. Black: Do you think that this man had been acquitted of a -- of this charge, 9 (h) that you could try to defraud in the Government then?

Mr. Nathan Lewin: No, but Mr. Justice Black, 9 (h) doesn't -- 9 (h) of itself has no sanctions (Voice Overlap) in that criminal statute.

Justice Hugo L. Black: (Voice Overlap) crime.

Mr. Nathan Lewin: Right.

Justice Hugo L. Black: Should have been made a crime.

Mr. Nathan Lewin: Well 9 (h) has no criminal sanctions, it's not a statute which prohibits anybody from doing it.

I would think that the -- our contention is that irrespective of whether 9 (h) itself was constitutional, it was at that time a fraud against the Government.

That's why our documents and to do what petitioners in this case did.

Justice Abe Fortas: To defraud?

Mr. Nathan Lewin: Our -- the final claim that petitioners make is that the witnesses grand jury testimony should have been examined in camera or produced for defense inspection.

Now, we submit that an analysis here must begin with what this Court said in the Procter and Gamble case which is that we start with a wrong established policy that maintains the secrecy of grand jury proceedings in the federal courts.

Now grand jury minutes are in the first instance intended to be secret and we think that rule succeeds.

The plaintiff provides for that and it was not in any way affected by -- in that respect by the recent amendment for federal rules which this Court approved then obviously, grand jury minutes are not in a class with Jencks' statements, statements subject to 18 U.S.C. 3500 or the Jencks Act.

A critical point, a critical distinction it seems to us between the Jencks statements, statements which the Government may have of government witnesses made to agents to the Government and grand jury minutes is that Jencks statements could presumably be handed over by the Government to the defense at the Government's choice.

There's no policy -- no traditional policy of secrecy regarding that but there is a governmental policy which presumably can be waived by the Government.

But the Government has no option to hand over grand jury minutes whenever it chooses.

Rule 6 (c) specifically provides that attorneys for the Government may disclose grand jury minutes only when so directed by the Court preliminary to or in connection with the judicial proceeding.

That means --

Justice Abe Fortas: Well, the question there is not whether the lawyers committed the error but whether the Court committed the error --

Mr. Nathan Lewin: Right, but its --

Justice Abe Fortas: -- and the Courts got the power.

Mr. Nathan Lewin: Right, but it seems to us --

Justice Abe Fortas: (Voice Overlap) agree, you agree to that.

Mr. Nathan Lewin: Definitely, Mr. Justice Fortas.

But it seems to us that what that does -- what -- the rule that the Court has to direct the threads minimal of grand jury minutes means is that it should only be in the rare instance that a Court directs that they'd be handed over without any sort of inspection at all.

Petitioners here contend in reliance somewhat on Pittsburgh Plate Glass case that they should have been entitled to direct disclosure to them of grand juries.

Now this is not the kind of situation we submit in which court should be ordering or a prosecution counsel can just be handing over minutes.

The Court should itself examine minutes to determine whether any judicial policy and secrecy apart from the Government's interest with any judicial policy of secrecy maybe is in anyway being overridden or injured by the disclosure to the defense.

Now, the reason we submit why the judge was not to be required in every instance to examine grand jury minutes in camera is simply -- now what this would result then is substantial delay and very heavy burdens on trial judges.

Justice Potter Stewart: How does that worked up in the Second Circuit where as I understand it that is pretty generally done?

Mr. Nathan Lewin: Oh I've been told Mr. Justice Stewart that what -- the way it's worked out on the Second Circuit that there's almost automatic disclosure of grand jury minutes.

What happens is that -- it's like a Jencks' statement.

The defendant says “I want the grand jury minutes.”

The judges say, “Well, hand them over” and we think that that really isn't what Rule 6 (c) is intended to do.

The judge should be looking at the minutes but we think that that -- that's the necessary result of a rule that says you've got to look at the minutes all the time because judges feel substantially burdened by the task of taking on the grand jury minutes (Voice Overlap) --

Justice William J. Brennan: -- they think that maybe the defense probably knows better how to use the [Inaudible]

Mr. Nathan Lewin: Well, we think that -- that may be very well be true too.

But --

Justice William J. Brennan: Yes, I think it's very true.

Mr. Nathan Lewin: Well, in this case (Voice Overlap) --

Justice William J. Brennan: No, only in this case, in any case where judges just say “Oh, you take it.

I don't know how you use it.”

Mr. Nathan Lewin: Well I --

Justice William J. Brennan: That's what happens under 3500.

Mr. Nathan Lewin: It is.

Justice William J. Brennan: It's a practical matter.

Mr. Nathan Lewin: Well unless the -- mass government counsel says that there's something that the Government (Voice Overlap) --

Justice William J. Brennan: How often the government counsel say anything anywhere, we don't see any cases or they seem to say that.

Mr. Nathan Lewin: Well, I guess it's not often but occasionally.

But --

Justice William J. Brennan: Has there been any harm being done in the Second Circuit?

Do you know of?

Mr. Nathan Lewin: I don't know whether there is any noticeable on -- no, --

Justice William J. Brennan: I mean as the (Voice Overlap) as the practice?

Mr. Nathan Lewin: Pardon?

Justice William J. Brennan: The nobles have put to try to change the practice or others --

Mr. Nathan Lewin: None that I heard of (Voice Overlap).

All that we argued really is that in order to justify even an in camera inspection, the imposition that this puts on the trial judge, the defendants should be required to say something and point to some particular matter in the witnesses' testimony or some -- some specific item which he things would justify an in camera inspection.

Now on this case, petitioners have managed to do so very successfully in this Court, but if the trial transcript is examined, they didn't make nearly the same showing in the trial court as they've done here in the various illustrations in their brief and those showings could have been made in the trial court.

Generally, the statements made in the trial court were that -- all that the witnesses' testimony knows with declarations that it -- the specific wording of the declarations might be important and a general allegation of inconsistency with prior testimony.

But in this case or in this Court, petitioners have pointed to specific alleged inconsistencies between public testimony of the witnesses which they did not do in the District Court.

And we think that the transcript reflects and quite clearly that the Court was willing if there had been or any real attempt made to have them examine this transcript to really look at the transcripts but no real attempt was made.

And in any event, we submit that no harm could possibly be done to petitioners if the case were now remanded after the District Judge look at those minutes to certify whether there were inconsistencies which would have justified any motive of the defense.

General Taylor has pointed to the fact that one of the witnesses, Mr. Mason died between the first and second trial.

Well all what that means is that the District Judge agreed to grand jury transcript and compares it with the testimony of the first trial determines whether there were any inconsistencies.

Certainly if you find that there were no inconsistencies that doesn't vitiate this conviction.

If you were to find that were no inconsistencies then the petitioners were not entitled for the grand jury transcript at neither at the first trial nor the second trial and the convictions could stand.

Chief Justice Earl Warren: General Taylor.

Rebuttal of Telford Taylor

Mr. Telford Taylor: I would like to deal with a few of the questions that the Court put during the Government's argument.

Firstly, with the questions that had to do with the statutory point and then on the question of our situation with respect to constitutional contention.

And may I begin with the questions that the Chief Justice and Mr. Justice White, I think especially, were putting with regard to why this indictment was brought under the fraud clause rather than under the offense clause.

We deal with that in our brief at page 19 and the explanation as I think reasonably clear and the sequence not without interest.

I mentioned in reply to Mr. Justice Stewart's question that there was one other conspiracy case like this one.

That Mr. Justice Stewart was brought under the offense clause of the conspiracy statute.

Justice Potter Stewart: That conspires -- that conspiracy to violate 1001, is that it?

Mr. Telford Taylor: Yes and the sequence is that this indictment in our case came in November of 1956.

In December of 1956, this Court decided the Leedom case which held that the Labor Board didn't have any interest in the truth or falsity of these affidavits.

And the West indictment, that's the other conspiracy case was brought in January of 1957 and was brought under the offense clause of the conspiracy statute.

And it seems to us clear enough that the Leedom case underlying the doubts which we thought should have existed before with respect to the validity of an indictment under the fraud clause so the Government shifted to the other and safer clause.

Now, the first one was brought under the fraud clause, we believe does have to do with the statute of limitations.

Whether it would have been successful in that respect isn't that matter of course, but the Court did say in the Grainger case that the statute of limitations on conspiracy to commit an offense cannot be any longer than on the offense itself.

Well some of these affidavits go back to 1949 in the indictment and not until 1956.

So there obviously was a problem with respect to statute limitations which may account the initial indictment.

Now Mr. Justice Stewart I'd like to go on with the question that you've put with respect to this indictment.

Mr. Lewin said in reply to your question that this indictment is not brought under 1001.

Of course it doesn't refer to 1001, there's no doubt about that.

However, my dimension that this -- that Section 9 (h) does have in it a sanction and the sanction is 1001, it's incorporated by this explicit mention.

The last sentence in 9 (h) is, the provisions of Sections blank, blank, 1001, 1022 and 1023, shall be applicable in respect to such affidavits.

So that there is a built-in incorporation by explicit reference to 1001 and therefore there's not a slightest difficulty in indicting in the circumstances for -- under the offense clause as well as under the fraud clause.

Now, coming back to the Bridges case, the distinction which Mr. Lewin has suggested here that the Bridges case had to do with the Suspension Act and therefore is irrelevant to our present problem, I don't think would stand analysis.

Mr. Lewin says that if the Suspension Act haven't been involved there that the indictment would have stood.

Well, there are other cases.

The Hammerschmidt case decided in 1926 involved no problem with statute limitations, no Suspension Act, it was a case where the Government prosecuted for conspiracy-to-defraud by obstructing registrants from military service.

Dismissed as a failure to state any fraud element, no statute of limitations involved --

Justice Potter Stewart: But there are that previous -- the case that decide (Voice Overlap)

Mr. Telford Taylor: -- case.

Justice Potter Stewart: Haas, I think it is Haas?

Mr. Telford Taylor: Haas (Voice Overlap) yes.

Justice Potter Stewart: -- decided by Justice Wortendyke, referred to in the [Inaudible] case?

Mr. Telford Taylor: Yes.

But the [Inaudible] case I think shows -- it shows -- it seems to me clearly enough that regardless of the presence or absence of the statute of limitations problem, if the elements aren't made out, the indictment must fail.

And the Bridges case tells us that in determining whether fraud is made out, you don't look simply at what the indictment says.

You look at what is in it.

Now, Mr. Lewin has said there's a lot more in this indictment beside the violation of 10001.

And of course there are indeed a lot more paragraphs, but the only unlawful element involved here is the false affidavit nothing else in it has anything to do with an unlawful conspiracy.

Indeed, this again is just like the Bridges case.

In Bridges, the first count said that Bridges was charged with conspiring to defraud the United States by making a false answer and thereby getting a naturalization certificate.

These things about the use of the Board and all that, they are the normal fruits of false statement.

I don't suppose anybody makes some just as I put in our reply brief that followed it, but there would have been no conspiracy here, there's no unlawful element at all other than the false affidavit.

And that is an offense under 10001 and fraud is not an element of it and this Court had said so repeatedly.

And the Government I think saw the -- saw the point after the Leedom case and therefore switched to the other clause.

Now, with respect to our constitutional contentions and whether we can bring them to the attention of the Court.

Mr. Justice Fortas' remarked that this is not a question of standing but of relevance and so forth.

It seems to us that the Government's point it is – arguing the statutory point, says that 10001 is something quite different from 9 (h) and when their argument constitutional point says -- said that's one and the same thing.

There could be no indictment here.

There would be no compulsion to file an affidavit, no pressure to file an affidavit but for 9 (h).

No affidavit would have been filed but for 9 (h).

And therefore, it doesn't seem to me that there's any problem with irrelevance.

Now the Kapp and Kay cases do say that under the circumstances there, the defendants were not entitled to challenge the constitutionality of those statutes.

The circumstances though I suggest were quite different.

In the Kay case which deals with this problem most clearly, involving the Home Owners Loan Corporation, the defendant indicted was -- the charge was that she -- who had a second mortgage on property, had overstated the amount of that mortgage in an application to the Home Owners Loan Corporation.

The Court said that her challenge to the validity of the entire statute would not lie.

That since she had sought benefits under it, she was not entitled to raise the question of the constitutionality of the entire scheme of Home Owners Loan Act, but that she was entitled to challenge the constitutionality of the particular sections of that Act under which her showing to the Government had been made.

And indeed the case did explicitly pass on the constitutionality of Sections 8 (a) and 8 (e) of the Home Owners Loan Act which were the relevant and governing sections.

It was only the overall challenge to the statute which the Government -- which the Court would not hear.

This part of our argument is dealt with in some detail in our reply brief at pages 6 to 10, and may I just burden the Court by pointing out there is a misstatement on page 8 which renders that paragraph meaningless the word sanctions should be situations.

The Kapp and the Kay case involved situations where the defendants want to see the validity or benefit from the Government.

The Government's position does amount to a contention that when an unconstitutional, unauthorized inquiry is made, a person must either disclose or litigate, or at least risk litigation.

Now I quite agree with Mr. Lewin that the appropriate and best kind of conduct in that situation is indeed to disclose or to challenge.

But it seems to us that to hold people in general to those standards is utterly unrealistic and highly oppressive in this potentialities.

This again we've dealt with on page 10 of our reply brief.

If this is so, I don't see why all kinds of questions clearly put to people in some of these forms, service on juries, racial questions, questions of religion are the matters quite beyond authorize scrutiny and put everyone to the hazard of answering truthfully or litigate it.

It seems to us the consequences speak for themselves and the -- this Court shall [Inaudible].

Thank you Mr. Chief Justice.