303 F.2d 724 (9th Cir. 1962), 17376, Ogden v. United States

Docket Nº:17376.
Citation:303 F.2d 724
Party Name:Billy Maurice OGDEN, Appellant, v. UNITED STATES of America, Appellee.
Case Date:May 16, 1962
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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303 F.2d 724 (9th Cir. 1962)

Billy Maurice OGDEN, Appellant,


UNITED STATES of America, Appellee.

No. 17376.

United States Court of Appeals, Ninth Circuit.

May 16, 1962

Rehearing Denied June 20, 1962.

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Daniel G. Marshall, Los Angeles, Cal., for appellant.

Wirin & Okrand, Los Angeles, Cal., Gerald H. Gottlieb, Beverly Hills, Cal., as amicus curiae, for American Civil Liberties Union.

Before CHAMBERS, MERRILL and BROWNING, Circuit Judges.

BROWNING, Circuit Judge.

The defendant was convicted by a jury under both counts of a two-count indictment alleging violations of 18 U.S.C.A. § 1001. He was sentenced to two years' imprisonment on each count, the sentences to run concurrently, and has appealed. The case is remanded for a further hearing with respect to certain problems arising under the Jencks Act.


Count One of the indictment alleged that in a matter within the jurisdiction of the Department of the Air Force defendant had filed a 'Certificate of Non-affiliation with Certain Organizations,' in which he had falsely denied that he had been a member of the Communist Party. Count Two alleged that in the same document defendant had falsely denied that he had been affiliated or associated with the Communist Party. The defendant's threshold contention is that a violation of 18 U.S.C.A. § 1001 cannot be founded upon false statements in a Certificate of Non-affiliation because there was no federal statute or presidential executive order specifically authorizing the use of such a Certificate. We conclude that the use of the Certificate was authorized, and that application of 18 U.S.C.A. § 1001 to false statements in the Certificate did not violate constitutional limitations.

The Certificate of Non-affiliation was completed by defendant as an employee of a private concern having contracts with the United States Air Force, as part of an application for security clearance under the Industrial Personnel Security Program. 1 The Certificate inquired into his membership in, and affiliation or association with, a list of organizations identified as those 'designated by the Attorney General, pursuant to Executive Order 10450, as having interests in conflict with those of the United States.' 2 The first organization listed was the 'Communist Party, U.S.A., its subdivisions, subsidiaries and affiliates.'

The defendant recognizes that under the decision in Greene v. McElroy, 360 U.S. 474, 506, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959), the Department of Defense was authorized to fashion and apply an industrial security program affording sufficient safeguards to the constitutional rights of affected employees. But defendant contends that the inquiry addressed

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to him in the Certificate of Nonaffiliation intruded upon an area protected by the First Amendment and that, under the rationale of Greene, its use as a part of an industrial security program can be justified only if explicitly authorized by Congress or the President. Defendant asserts that since express authorization is lacking, the prosecution must fail.

Any inquiry which requires an individual to disclose his relationship with the Communist Party imposes some inhibition upon his freedom of association. But Greene does not require that every governmental intrusion into a general area subject to constitutional protection be authorized in minute detail. The specificity required depends in part upon the nature and extent of the intrusion, and its purpose and effect. Our inquiry is whether the Department of Defense was sufficiently authorized to ask this defendant these questions.

The Supreme Court did not indicate in Greene whether the authority of the Department of Defense to establish an industrial security program was derived from the Congress or the President, or both. For present purposes we may confine our examination to the line of authority extending from the President.

The pertinent delegation of authority during the relevant period was contained in Executive Order 10501. 3 This Presidential Order established a comprehensive program for the classification, marking, custody, dissemination, and transmission of official information relating to the national defense. The Order directed departments and agencies having direct responsibility for the national defense to classify such material and control its subsequent dissemination in accordance with the standards and procedures stated in the order. The Order made it clear that classified material was to be made available only to 'authorized persons, in or out of federal service,' 4 and that it was the duty of the Department involved to see that 'unauthorized persons are prevented from gaining access thereto,' 5 as the Order stated, 'by sight or sound.' 6 More specifically, the Order directed that 'knowledge or possession of classified defense information shall be permitted only to persons whose official duties require such access in the interest of promoting national defense and only if they have been determined to be trustworthy,' 7 and that 'classified defense information shall not be disseminated outside the executive branch except under conditions and through channels authorized by the head of the disseminating department * * *.' 8

Fairly read, Executive Order 10501 authorized the establishment by the Department of Defense 9 of a system for

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screening all persons who sought access to defense information officially classified by the Department--including employees of private industry. The standard was to be two-fold: (1) whether the individual's official duties required access to such information in the interest of national defense, and (2) whether the individual was trustworthy. Sufficient authority to establish a program for screening privately employed persons seeking access to classified material or participation in sensitive activity has been found in statutory authorization no more explicit than this Executive Order. 10

The question remains whether the Department was authorized, as a part of this screening program, to inquire as to the employee's relationships with the Communist Party. Executive Order 10501 imposed a duty upon the Department of Defense to confine the dissemination of classified defense information to persons who 'have been determined to be trustworthy.' The Department of Defense interpreted the standard of 'trustworthiness' as requiring that clearance be denied or revoked if 'access to classified information by the person concerned is not clearly consistent with the interests of national security.' 11 The courts have repeatedly acquiesced in the determination of other branches of the federal government that the Communist Party is controlled by the foreign nation whose strained relationship with our own is largely responsible for out vast defense effort. 12

In inquiries related to security, the disclosure of Communist Party membership may, at the very least, provide 'a significant investigatory lead.' 13 The duty imposed upon the Department by Executive Order 10501 compelled inquiry by the Department into the applicant's possible relationships with the Party.

The Department of Defense did not claim authority to deny or revoke the security clearance of a private person solely

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on the basis of disclosure of a relationship between that person and the Communist Party. Under the regulations, the existence of such a relationship was one of many factors to be considered, 14 and 'the ultimate determination of whether such clearance should be granted or continued must be an overall common-sense one, based on all available information.' 15 The Certificate of Non-affiliation was part of the initial application for security clearance. 16 Thus the Department claimed only that a delegation of authority to determine whether an individual may be trusted with classified defense material carries with it authority to ask him, at the threshold of the inquiry, about his relationship if any with the Communist Party. That claim we sustain.

Defendant did not reject the inquiry, but responded to it-- falsely. In these circumstances, we understand the defendant to attack only the sufficiency of the delegation to the Department of Defense of authority to make the inquiry, and not the constitutional basis of the governmental operation in which the inquiry was made. One who has given false answers to material inquiries regarding a matter colorably within the authority of a government agency may not defend a subsequent prosecution under 18 U.S.C.A. § 1001 on the ground that the governmental operations involved were in fact vulnerable to constitutional attack. 17

It seems abundantly clear in the present state of the authorities that the application of 18 U.S.C.A. § 1001 to a false statement in a Certificate of Non-affiliation regarding defendant's relationship with the Communist Party 18 raises no substantial constitutional problem. The relevance of the inquiry to the protection of a vital national interest is plain. The restriction upon freedom of association is limited. The power of the federal government to require disclosure of membership in the Communist Party on pain of criminal punishment has been sustained with less at stake than the inviolability of classified defense information. 19 The interest of the federal government in determining

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the qualifications of persons seeking to operate a radio station has been held to justify the refusal to license one who declines to state whether he is a member of the Communist Party. 20 The interest of a state in determining the qualifications of applicants for admission to the bar has been...

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