Weinstock v. United States, 12656.

• Decision Date: 05 January 1956
• Docket Number: No. 12656.,12656.
• Citation: 231 F.2d 699
• Parties: Louis WEINSTOCK, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

231 F.2d 699 (1956)

Louis WEINSTOCK, Appellant, v. UNITED STATES of America, Appellee.

No. 12656.

United States Court of Appeals District of Columbia Circuit.

Argued October 5, 1955.

Decided January 5, 1956.

Mr. Harry Sacher, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of Court, with whom Messrs. Joseph Forer and David Rein, Washington, D. C., were on the brief, for appellant.

Mr. John D. Lane, Asst. U. S. Atty., with whom Mr. Leo A. Rover, U. S. Atty., Messrs. Lewis Carroll and William Hitz, Asst. U. S. Attys., and Mr. Cecil R. Heflin, Attorney, Dept. of Justice, were on the brief, for appellee.

Before PRETTYMAN, FAHY and DANAHER, Circuit Judges.

PRETTYMAN, Circuit Judge.

Appellant was indicted on two counts for making a false statement before an agency of the United States and was convicted on one count. The false statement was alleged to have been made in an affidavit filed by him with the Subversive Activities Control Board.

The Attorney General of the United States filed with the Board, on April 22, 1953, a petition against the "United May Day Committee".¹ He sought to require the Committee to register as a Communist-front organization. In his petition he alleged: "From in or about 1946 up to and including the date of the filing of this petition and continuing thereafter, there has existed and operated in the United States an organization known by various names, which is now known as the United May Day Committee (hereinafter referred to as the UMDC)." On May 6, 1953, a copy of the petition was served upon appellant, he being described in the marshal's return upon the service as "Chairman, United May Day Committee". Weinstock filed a motion to quash the service. The pertinent part of that motion was:

"3. There is no Respondent upon which service can be made or against which the relief prayed for in the petition can be granted for the reason that the United May Day Committee is not in existence, either under that name or any other name, and was not in existence on the date of service of the petition on movant.

"Movant submits the annexed affidavit in support of the foregoing motion."

The supporting affidavit was in eleven paragraphs. It is long, but in order to understand our position in the case it is necessary that nearly the whole of it be read. We have therefore reproduced paragraphs 4 to 11, inclusive, in an Appendix to this opinion, the first three paragraphs being purely formal. In his affidavit Weinstock set forth in considerable detail facts with reference to the May Day holiday in New York City. He said he had personal knowledge of the manner in which the celebration was conducted from 1935 to and including 1953. He said that in about March of each year, except for the war years, interested individuals would call a meeting for the purpose of organizing a committee to conduct the celebration. This meeting adopted a name for the committee, elected officers, and the celebration was duly held. Shortly thereafter, Weinstock said, a meeting of those who had participated occurred, at which a report of the committee's activities and a final financial report were made and the committee was dissolved. Thus, he said, the committee was organized each year, functioned for approximately six weeks, and then was dissolved.

Weinstock said that during the years 1935 to 1953 the names of the committee had varied, as had the identities of the individuals who called the meetings and constituted the committee. He said that "United May Day Committee", "United Front May Day Committee", and "United Labor and Peoples' Committee for May Day" were among the names used for the committee and that the last had been the name by which the committee had been known from 1949 through 1953.

Weinstock then described in considerable detail the organization of the committee for 1953 and the manner in which the celebration on May Day of that year had been conducted. He said he had been administrative secretary for that committee. He said that on May 5, 1953, the committee held its final meeting and was dissolved and that at a meeting, held May 11th, of the endorsers of and participants in the celebration the final reports were approved.

In the fourth paragraph of the affidavit Weinstock included the sentence, "There has been no committee or organization known as or having the name United May Day Committee since May, 1948." In the indictment upon which he was convicted it was alleged this statement was known by him to be false, in that there was in the years 1950, 1951, 1952 and 1953 a committee known as the United May Day Committee.

The situation presented by the Attorney General's petition, the motion to quash, and the affidavit is perfectly clear. The Attorney General claimed that there was on May 6, 1953, and had been since about 1946, an organization known by various names, being in 1953 known as the United May Day Committee. Weinstock took the position that there had been since 1935, except for the war years, a committee annually organized and dissolved; that there had been such a committee in 1953 but that it had dissolved by its own action on May 5, 1953. He said that in prior years the committee had been named "United May Day Committee" but that in the years 1949-1953 it was called "United Labor and Peoples' Committee for May Day". His point, clearly and unequivocally presented, was that on May 6, 1953, the committee was not in existence. He specifically asserted the committee was not in existence under any name. The Attorney General on the contrary asserted the existence of the committee.

The crime for which Weinstock was indicted is described in Section 1001, Title 18, of the United States Code.² That section reads as follows:

"Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both."

The first clause of the foregoing statute requires that the statement of the accused be false as to "a material fact", and we held in Freidus v. United States,³ in respect to the whole section, that "this highly penal statute must be construed as requiring a material falsification."

The precise crux of the controversy is whether the statement "There has been no committee or organization known as or having the name United May Day Committee since May, 1948" was material to an issue posed either by the motion to quash or by the petition.

"Material" when used in respect to evidence is often confused with "relevant", but the two terms have wholly different meanings. To be "relevant" means to relate to the issue. To be "material" means to have probative weight, i. e., reasonably likely to influence the tribunal in making a determination required to be made. A statement may be relevant but not material. Professor Wigmore depicts with some acerbity the difference between relevancy and materiality, "the inaccuracy of our usage" of the terms, and "the harmfulness of this inveterate error".⁴ Materiality, he maintains, is a matter of substantive law and does not involve the law of evidence. He does not include "materiality" in the topics treated in his volumes on Evidence.

The term "material" is used in many fields of law; for example, insurance law, bankruptcy, agency, motions for new trial upon the ground of newly discovered evidence, and in respect to perjury. In respect to materiality in perjury Blackstone said, "* * * for if it only be in some trifling collateral circumstance, to which no regard is paid, it is not penal.⁵ The meaning of the word appears to be consistent in these various fields. The test is whether the false statement has a natural tendency to influence, or was capable of influencing, the decision of the tribunal in making a determination required to be made.⁶

Materiality must be judged by the facts and circumstances in the particular case. The color of an accused's hair may be totally immaterial in one case, but in other circumstances the color of his hair may be not only material but decisively so.⁷

Since the jury in the case at bar found the accused guilty we may assume it found the statement which is the basis of the indictment false. But we think that in the setting in which it was made the statement was not material. If the one sentence had stood alone it might well have been material. But in context, as merely part of the long affidavit, it was immaterial, wholly without weight or influence in any decision to be made by the Board.

The issue posed was whether the committee was a continuous organization or was an annual organization which existed for only six weeks each year, and, more particularly, whether the committee was in existence on May 6, 1953. We think no tribunal, in passing either upon the petition or upon the motion to quash, would have been influenced in the slightest by the name by which the committee was known, either on May 6, 1953, or at any other time, whether the name was United May Day Committee or United Labor and Peoples' Committee for May Day. The Attorney General had said in his petition that the committee had operated under various names; Weinstock agreed, also saying it had had various names. Surely the Board would have paid no attention whatsoever to the insignificant difference between the names under which the committee went. Had it found all the other facts in dispute to be as the Attorney General claimed them to be, surely it would have permitted as a mere formality an amendment to the title of the proceeding.

We cannot imagine that Weinstock, in supporting his motion to quash before the Board,...