Young v. United States

• Decision Date: 08 April 1954
• Docket Number: No. 11782.,11782.
• Citation: 94 US App. DC 54,212 F.2d 236
• Parties: YOUNG v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

94 US App. DC 54, 212 F.2d 236 (1954)

YOUNG v. UNITED STATES.

No. 11782.

United States Court of Appeals District of Columbia Circuit.

Argued December 15, 1953.

Decided April 8, 1954.

Writ of Certiorari Denied June 7, 1954.

Mr. James F. Reilly, Washington, D. C., with whom Mr. Harry A. Calevas, Washington, D. C., was on the brief, for appellant.

Mr. William A. Paisley, Sp. Asst. to the Atty. Gen., with whom Messrs. Leo A. Rover, U. S. Atty., and J. Frank Cunningham, Attorney, Dept. of Justice, Washington, D. C., were on the brief, for appellee. Mr. John F. Byerly, Atty., Dept. of Justice, Washington, D. C., entered an appearance for appellee.

Before WILBUR K. MILLER, FAHY and WASHINGTON, Circuit Judges.

Writ of Certiorari Denied June 7, 1954. See 74 S.Ct. 870.

WASHINGTON, Circuit Judge.

Appellant was tried in the District Court on four counts of perjury. D.C.Code 1951, Tit. 22, § 2501. The first three counts concerned his testimony before the Reconstruction Finance Corporation Subcommittee of the Senate Banking and Currency Committee. The fourth concerned his testimony before the grand jury. He was found guilty on all four counts and sentenced to a term of imprisonment of from four months to two years, to run concurrently, on each. Since the sentences are to run concurrently the judgment of the District Court must be upheld if the conviction of appellant on any count is valid. Kiyoshi Hirabayashi v. United States, 1943, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774. We consider appellant's conviction on the first count to be clearly valid. We accordingly affirm on that count, and in this opinion will discuss only those contentions of the appellant which are applicable to it.

At the outset appellant attacks the validity of the indictment. Each count asserts that an oath was duly taken before "a competent tribunal * * * in which a law of the United States authorizes an oath to be administered * * *." It does not set forth the name of the individual who administered the oath or his authority to do so. This, appellant urges, renders the indictment fatally defective. He relies on a section of the District of Columbia Code which provides that a perjury indictment must set forth "by what court, or before whom the oath was taken (averring such court, or person or persons, to have a competent authority to administer the same) * * *." D.C.Code 1951, Tit. 23, § 204. Since the passage of this section,¹ however, the Federal Rules of Criminal Procedure, 18 U.S.C.A. have been promulgated. Rule 7(c) provides that "The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. * * * It need not contain * * * any other matter not necessary to such statement. * * *" The substantive elements of perjury in this jurisdiction are set out in Section 22-2501 of the District of Columbia Code. That section is nearly identical in its terms to Section 1621 of Title 18 of the United States Code, and under the latter section an allegation of the name or authority of the individual who administered the oath has been held to be unnecessary. United States v. Debrow, 1953, 346 U.S. 374, 74 S.Ct. 113. Similar reasoning is applicable here. We do not consider that Section 23-204 of the District of Columbia Code — which is purely procedural — has the effect of adding to the substantive elements of perjury ("the essential facts constituting the offense charged") a requirement that the name of the giver of the oath be alleged. The instant indictment thus complies with Rule 7(c), and that compliance sustains it. See Fed.R.Crim.P. 1; 18 U.S.C. § 687 (1946)^*; United States v. Bickford, 9 Cir., 1948, 168 F.2d 26.

Appellant also attacks the indictment on the basis of the selection of the grand jury panel. The jury commissioners excluded from the jury list all persons who voted outside the District of Columbia, on the ground that they could not be "residents" of the District of Columbia.² This practice, which has since been discontinued, was certainly erroneous.³ The question is whether it warrants reversal.

Appellant relies primarily on Ballard v. United States, 1946, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181, and Thiel v. Southern Pacific Co., 1946, 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181. In those cases convictions were reversed because of the exclusion from the jury panel of women (Ballard) and daily wage earners (Thiel). In both cases a cohesive class, united by common interests, was excluded.⁴ The Court stressed this fact and demonstrated a concern to secure jury panels which were representative of the communities from which they were drawn. In Thiel it listed six groups — economic, social, religious, racial, political and geographical — which could not be excluded. 328 U.S. at page 220, 66 S.Ct. at page 985. Here none of these were excluded. Persons who reside in the District of Columbia but vote elsewhere come from either sex and from all racial, religious and political groups. They comprise no cohesive group. Their exclusion does not threaten the representative nature of jury panels. We do not believe, therefore, that the Ballard and Thiel cases are applicable. The exclusion here is a mere irregularity and does not warrant reversal.⁵

Appellant next contests the competency of the Subcommittee before which he testified. He alleges that at the time he gave the testimony on which the first three counts are based the Subcommittee was not engaged in a legislative function.

The instant Subcommittee was authorized by the Senate to conduct a study of the operations of the Reconstruction Finance Corporation.⁶ Pursuant to this authorization it conducted extensive hearings and issued three interim reports. The third, issued on February 5, 1951, was entitled "Favoritism and Influence."⁷ It said that "there has been improper use of the Corporation's vast authority in response to the influence which persons outside of the RFC have over individual members of the Board of Directors."⁸ It added: "The individual named most frequently in the reports of alleged influence which have reached the subcommittee is E. Merl Young. * * * By July of 1948 his salary at RFC had risen to $7,193 a year. More recently, Merl Young has been an $18,000-a-year vice president of the Lustron Corp. and, simultaneously, a $10,000-a-year official of F. L. Jacobs Co. Both were RFC borrowers at the time. * * * It seems that Young acquired and held both of these positions because of the influential atmosphere which surrounds him."⁹

The third report favorably reported a bill — S. 514 — proposing a reorganization of the RFC.¹⁰ On February 19, 1951, the President submitted to Congress an executive reorganization plan which also proposed to reorganize the Reconstruction Finance Corporation. As a result the passage of S. 514 was rendered unlikely, at best. On February 21, 1951, the Subcommittee on the Reconstruction Finance Corporation re-commenced its hearings. The chairman stated, at that time, that the purpose of the hearings would be to clarify the third interim report, to rebut criticism of it, to develop evidence in its support, and to afford persons mentioned in it an opportunity to reply.¹¹ It was at this set of hearings that the testimony in question was given.

Appellant argues here that the Subcommittee's purpose was one of "ventilation" and that this is not a valid legislative purpose. He points to the chairman's remarks and the fact that S. 514 had been, in effect, superseded by the President's reorganization plan. There is no merit in this argument. Certainly a committee can hold hearings to substantiate an earlier report, where the bill reported is pending before Congress. Here, to be sure, S. 514 appeared doubtful of passage, in view of the presidential reorganization plan. But the report was also pertinent to that plan. And at the time of the hearings in question the plan was before Congress for its acceptance or rejection.¹² It was entitled to know whether or not the report of the Subcommittee was subject to refutation.

The clearly valid legislative purpose which thus underlay these hearings was not vitiated by the incidental desire of the Subcommittee to give interested parties a chance to reply to statements made in the third report. That desire was fair and reasonable. The mere "ventilation" of sensational facts, of a sort not conceivably linked or linkable to valid congressional legislation, has been the target of much criticism.¹³ But nothing of that kind is present here.

Appellant next alleges that the District Court erred in denying a motion for acquittal. He urges that the evidence is insufficient on all counts. We briefly summarize the evidence as to the first count, to which this opinion is limited.

Count I charges appellant with perjuriously testifying: "While I was employed by the Reconstruction Finance Corporation I never had anything to do with the loan applications made by Lustron." This representation was contained in a prepared statement read by appellant at the hearing of February 21, 1951.

The Lustron Corporation first applied for a loan in 1947. Appellant was then a loan examiner in the RFC. It is conceded that he had nothing to do with the application for this loan. He did, however, "service" the loan after it was granted.¹⁴ In June of 1948 Lustron applied for an additional loan of $10,000,000. It is this second application with which appellant was found to have been connected. The primary evidence connecting him with it is a document of the Reconstruction Finance Corporation review committee recommending the loan. In the lower left hand corner of the last page of this document, underneath the word "concur," is appellant's signature. Hubert Steele, a former loan examiner at the Reconstruction Finance Corporation, testified that it was usual for an examiner who was servicing a loan to make a recommendation on any additional loan requested by that borrower....