353 U.S. 657 (1957), 23, Jencks v. United States

Docket Nº:No. 23
Citation:353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103
Party Name:Jencks v. United States
Case Date:June 03, 1957
Court:United States Supreme Court

Page 657

353 U.S. 657 (1957)

77 S.Ct. 1007, 1 L.Ed.2d 1103



United States

No. 23

United States Supreme Court

June 3, 1957

Argued October 17, 1956




Petitioner was convicted in a Federal District Court of violating 18 U.S.C. § 1001 by filing, under § 9(h) of the National Labor Relations Act, as president of a labor union, an affidavit stating falsely that he was not a member of the Communist Party or affiliated with such Party. Crucial testimony against him was given by two paid undercover agents for the FBI, who stated on cross-examination that they had made regular oral or written reports to the FBI on the matters about which they had testified. Petitioner moved for the production of these reports in court for inspection by the judge with a view to their possible use by petitioner in impeaching such testimony. His motions were denied.

Held: denial of the motions was erroneous, and the conviction is reversed. Pp. 658-672.

(a) Petitioner was not required to lay a preliminary foundation for his motion, showing inconsistency between the contents of the reports and the testimony of the government agents, because a sufficient foundation was established by their testimony that their reports were of the events and activities related in their testimony. Gordon v. United States, 344 U.S. 414, distinguished. Pp. 666-668.

(b) Petitioner was entitled to an order directing the Government to produce for inspection all written reports of the FBI agents in its possession, and, when orally made, as recorded by the FBI, touching the events and activities as to which they testified at the trial. P. 668.

(c) Petitioner is entitled to inspect the reports to decide whether to use them in his defense. Pp. 668-669.

(d) The practice of producing government documents to the trial judge for his determination of relevancy and materiality, without hearing the accused, is disapproved. P. 669.

(e) Only after inspection of the reports by the accused must the trial judge determine admissibility of the contents and the method to be employed for the elimination of parts immaterial or irrelevant. P. 669.

Page 658

(f) Criminal action must be dismissed when the Government, on the ground of privilege, elects not to comply with an order to produce, for the accused's inspection and for admission in evidence, relevant statements or reports in its possession of government witnesses touching the subject matter of their testimony at the trial. Pp. 669-672.

(g) The burden is the Government's, not to be shifted to the trial judge, to decide whether the public prejudice of allowing the crime to go unpunished is greater than that attendant upon the possible disclosure of state secrets and other confidential information in the Government's possession. P. 672.

226 F.2d 540, 553, reversed.

BRENNAN, J., lead opinion

MR. JUSTICE BRENNAN delivered the opinion of the Court.

On April 28, 1950, the petitioner, as president of Amalgamated Bayard District Union, Local 890, International Union of Mine, Mill & Smelter Workers, filed an "Affidavit of Non-Communist Union Officer" with the National Labor Relations Board, pursuant to § 9(h) of the National Labor Relations Act.1 He has been convicted under a two-count indictment charging that he

Page 659

violated 18 U.S.C. § 10012 by falsely swearing in that affidavit that he was not, on April 28, 1950, a member of the Communist Party or affiliated with such Party. The Court of Appeals for the Fifth Circuit affirmed the conviction,3 and also an order of the District Court denying the petitioner's motion for a new trial.4 This Court granted certiorari.5

Two alleged trial errors are presented for our review. Harvey F. Matusow and J. W. Ford, the Government's [77 S.Ct. 1009] principal witnesses, were Communist Party members paid by the Federal Bureau of Investigation contemporaneously to make oral or written reports of Communist Party activities in which they participated. They made such reports to the FBI of activities allegedly participated in by the petitioner, about which they testified at the trial. Error is asserted in the denial by the trial judge of the petitioner's motions to direct the Government to produce these reports for inspection and use in cross-examining Matusow and Ford. Error is also alleged in the instructions given to the jury on membership, affiliation, and the credibility of informers.6

Former Party members testified that they and the petitioner, as members of the Communist Party of New Mexico, had been expressly instructed to conceal their membership and not to carry membership cards. They also testified that the Party kept no membership records or minutes of membership meetings, and that such meetings were secretly arranged and clandestinely held. One of the witnesses said that special care was taken to conceal the Party membership of members, like the petitioner,

Page 660

occupying strategic and important positions in labor unions and other organizations where public knowledge of their membership to non-Communists would jeopardize their position in the organization.

Accordingly, the Government did not attempt to prove the petitioner's alleged membership in the Communist Party on April 28, 1950, with any direct admissions by the petitioner of membership, by proof of his compliance with Party membership requirements, or that his name appeared upon a membership roster, or that he carried a membership card.

The evidence relied upon by the Government was entirely circumstantial. It consisted of testimony of conduct of the petitioner from early 1946 through October 15, 1949, and of Matusow's testimony concerning alleged conversations between him and the petitioner at a vacation ranch in July or August, 1950, and concerning a lecture delivered by the petitioner at the ranch. The Government also attached probative weight to the action of the petitioner in executing and filing an Affidavit of Non-Communist Union Officer on October 15, 1949, because of the events surrounding the filing of that affidavit. The Government bridged the gap between October 15, 1949, and July or August, 1950, with the testimony of Ford that, during that period, the Party took no disciplinary action against the petitioner for defection or deviation, and did not replace the petitioner in the Party office which Ford testified the petitioner held as a member of the Party State Board.

The first alleged Party activity of the petitioner preceded his union employment. A witness, who was a Party member in the spring of 1946, testified that, at that time, he and the petitioner were present at a closed Party meeting at the home of the Party chairman for Colorado, where the petitioner, a veteran of World War II, led in urging that veterans who were Party members spread out

Page 661

into several veterans' organizations and not all join the same one, the better to further Party work.

Later in 1946, the petitioner was employed by the International Union of Mine, Mill & Smelter Workers as business agent for several local unions in the Silver City-Bayard, New Mexico, area. It was testified that one of the petitioner's first acts was to meet with the International Union's then Regional Director for the Southwest, a Communist Party member, and with the Communist Party organizer for the area, to develop plans for organizing a Party group within each of those locals, which later merged to form Amalgamated Local 890 under the petitioner's presidency.

[77 S.Ct. 1010] J. W. Ford was a member of the Communist Party of New Mexico from 1946 to September 1950, and, from 1948, was a member of the State Board and a Party security officer. He said that, in 1948, he became a paid undercover agent for the FBI,7 and reported regularly upon Party activities and meetings. He testified that the petitioner was also a Party and a State Board member, and he related in detail occurrences at five closed Party meetings which he said the petitioner attended.

At the first meeting, in August, 1948, Ford said the Party members worked out a plan to support the petitioner's candidacy for Congress on the ticket of the Progressive Party. At the second meeting, in February, 1949, Ford said that the petitioner and other Communist Party members were appointed delegates to a meeting of the Mexican-American Association in Phoenix, Arizona, to further a Party plan to infiltrate that organization and to use it for the Party's purposes. At the third meeting, in April, 1949, Ford said that the Party's state organization

Page 662

was completed, and the petitioner was appointed to the State Board and the Party leader in the southern half of the State. At the fourth meeting, in May, 1949, Ford said that the petitioner gave a progress report upon his success in recruiting Party members among labor groups, and offered to use Local 890's newspaper, "The Union Worker," which he edited, to support issues of Party interest. At the fifth meeting, in August, 1949, Ford said that preparations were made for another meeting later in that month of the Mexican-American Association in Albuquerque, and that the delegates, including the petitioner, were instructed to give vigorous support to the meeting, but to take care not to make themselves conspicuous in the proceedings.

Ford's duties as a Party security officer were to keep watch on all Party members and to report

any particular defections from the Communist philosophy or any peculiar actions, statements or associations, which would endanger the security of the Communist Party of the state.

If any defection reported by a security officer were considered important, the member

would be called in and would be either severely reprimanded or criticized, or disciplined. If he refused to accept such discipline, he would either be suspended or expelled.

Ford testified that, between...

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