367 U.S. 203 (1961), 1, Scales v. United States

Docket Nº:No. 1
Citation:367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782
Party Name:Scales v. United States
Case Date:June 05, 1961
Court:United States Supreme Court
 
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367 U.S. 203 (1961)

81 S.Ct. 1469, 6 L.Ed.2d 782

Scales

v.

United States

No. 1

United States Supreme Court

June 5, 1961

Argued April 29, 1959

Reargued October 10, 1960

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Syllabus

Petitioner was convicted of violating the so-called membership clause of the Smith Act, which makes a felony the acquisition or holding of membership in any organization which advocates the overthrow of the Government of the United States by force or violence, knowing the purposes thereof. The indictment charged that from January, 1946, to the date of its filing in 1954, the Communist Party of the United States was such an organization, and that, throughout that period, petitioner was a member thereof with knowledge of the Party's illegal purpose and a specific intent to accomplish overthrow of the Government "as speedily as circumstances would permit." The jury was instructed that it could not convict unless it found that, within the 3-year limitation period, (1) the Party advocated the violent overthrow of the Government, in the sense of present "advocacy of action" to accomplish that end as soon as circumstances were propitious, and (2) petitioner was an "active" member of the Party, and not merely "a nominal, passive, inactive or purely technical" member, with knowledge of the Party's illegal advocacy and a specific intent to bring about violent overthrow "as speedily as circumstances would permit."

Held: A judgment of the Court of Appeals sustaining the conviction is affirmed. Pp. 205-259.

1. Section 4(f) of the Internal Security Act of 1950, which provides, in part, that neither "the holding of office nor membership in any Communist organization by any person shall constitute per se a violation" of that or any other criminal statute, did not repeal pro tanto the membership clause of the Smith Act by excluding from the reach of that clause membership in any Communist organization. Pp. 206-219.

2. Petitioner's challenge to the constitutionality of the membership clause of the Smith Act must be overruled. Pp. 219-230.

(a) The statute was correctly interpreted by the two lower courts. Pp. 221-224.

(b) As construed and applied, the membership clause of the Smith Act does not violate the Fifth Amendment by impermissibly

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imputing guilt to an individual merely on the basis of his associations and sympathies, rather than because of some concrete personal involvement in criminal conduct. Pp. 224-228.

(c) As construed and applied, the membership clause of the Smith Act does not infringe freedom of political expression and association in violation of the First Amendment. Pp. 228-230.

3. The evidence was sufficient to sustain the conviction. Pp. 230-255.

4. None of the trial errors alleged by petitioner raises points meriting reversal. Pp. 255-259.

(a) The admission of evidence about the Party's program for inciting the Negro population in the South to revolt and the admission of a pamphlet called "I Saw the Truth in Korea," which contained a very gruesome description of alleged American atrocities in Korea, were not prejudicial errors warranting reversal of the conviction. Pp. 255-257.

(b) The so-called Jencks Act, 18 U.S.C. § 3500, is not unconstitutional, and its application to petitioner in this case did not invalidate his conviction. Pp. 257-258.

(c) Petitioner has made no showing to sustain his contention that congressional findings as to the character of the Communist Party contained in the Communist Control Act of 1954 and the Internal Security Act of 1950 deprived him of a fair trial on that issue. Pp. 258-259.

(d) By his failure to comply with Rule 12 of the Federal Rules of Criminal Procedure, petitioner waived any right he might have had to question the method of choosing grand jurors, and no impropriety in the method of choosing grand jurors has been shown. P. 259.

260 F.2d 21, affirmed.

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HARLAN, J., lead opinion

MR. JUSTICE HARLAN delivered the opinion of the Court.

Our writ issued in this case (358 U.S. 917) to review a judgment of the Court of Appeals (260 F.2d 21) affirming petitioner's conviction under the so-called membership clause of the Smith Act. 18 U.S.C. § 2385. The Act, among other things, makes a felony [81 S.Ct. 1474] the acquisition or holding of knowing membership in any organization which advocates the overthrow of the Government of the United States by force or violence.1 The indictment charged that from January, 1946, to the date of its filing (November 18, 1954), the Communist Party of the United States was such an organization, and that petitioner

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throughout that period was a member thereof, with knowledge of the Party's illegal purpose and a specific intent to accomplish overthrow "as speedily as circumstances would permit."

The validity of this conviction is challenged on statutory, constitutional, and evidentiary grounds, and further on the basis of certain alleged trial and procedural errors. We decide the issues raised upon the fullest consideration, the case having had an unusually long history in this Court.2 For reasons given in this opinion, we affirm the Court of Appeals.

I

STATUTORY CHALLENGE

Petitioner contends that the indictment fails to state an offense against the United States. The claim is that § 4(f) of the [81 S.Ct. 1475] Internal Security Act of 1950, 64 Stat. 987,

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50 U.S.C. § 781 et seq., constitutes a pro tanto repeal of the membership clause of the Smith Act by excluding from the reach of that clause membership in any Communist organization. Section 4(f) provides:

Neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation of subsection (a) or subsection (c) of this section or of any other criminal statute. The fact of the registration of any person under section 7 or section 8 of this title as an officer or member of any Communist organization shall not be received in evidence against such person in any prosecution for any alleged violation of subsection (a) or subsection (c) of this section or for any alleged violation of any other criminal statute.

To prevail in his contention, petitioner must, of course, bring himself within the first sentence of this provision, since the second sentence manifestly refers only to exclusion from evidence of the fact of registration, thus assuming that a prosecution may take place.

We turn first to the provision itself, and find that, as to petitioner's construction of it, the language is, at best, ambiguous, if not suggestive of a contrary conclusion. Section 4(f) provides that membership or office-holding in a Communist organization shall not constitute "per se a violation of subsection (a) or subsection (c) of this section or of any other criminal statute." Petitioner would most plainly be correct if the statute under which he was indicted purported to proscribe membership in Communist organizations, as such, and to punish membership per se in an organization engaging in proscribed advocacy. But the membership clause of the Smith Act, on its face, much less as we construe it in this case, does not do this, for it neither proscribes membership in Communist organizations, as such, but only in organizations engaging in advocacy of violent overthrow, nor punishes membership

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in that kind of organization except as to one "knowing the purposes thereof," and, as we have interpreted the clause, with a specific intent to further those purposes (infra pp. 219-222). We have also held that the proscribed membership must be active, and not nominal, passive, or theoretical (infra pp. 222-224). Thus, the words of the first sentence of § 4(f) by no means unequivocally demand the result for which petitioner argues. When we turn from those words to their context, both in the section as a whole and in the scheme of the Act of which they are a part, whatever ambiguity there may be must be resolved, in our view, against the petitioner's contention.

In the context of § 4 as a whole, the first sentence of subsection (f) does not appear to be a provision repealing in whole or in part any other provision of the Internal Security Act. Subsection (a) of § 4 makes it a crime

for any person knowingly to combine, conspire, or agree with any other person to perform any act which would substantially contribute to the establishment within the United States of a totalitarian dictatorship . . . the direction and control of which is to be vested in, or exercised by or under the domination or control of, any foreign government, foreign organization or foreign individual. . . .

Subsection (c) makes it a crime for any officer or member of a "Communist organization" to obtain classified information. We should hesitate long before holding that subsection (f) operates to repeal pro tanto either one of these provisions which are found in the same section of which subsection (f) is a part, and indeed the petitioner does not argue for any such quixotic result. The natural [81 S.Ct. 1476] tendency of the first sentence of subsection (f) as to the criminal provisions specifically mentioned is to provide clarification of the meaning of those provisions, that is, that an offense is not made out on proof of mere membership

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in a Communist organization. As to these particularly mentioned criminal provisions, immunity, such as there is, is specifically granted in the second sentence only, where it is said that the fact of registration shall not be admitted in evidence. Yet petitioner argues that, when we come to the last phrase of the first sentence, the tag "or . . . any other criminal statute," the...

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