Bary v. United States

• Citation: 292 F.2d 53
• Decision Date: 31 May 1961
• Docket Number: No. 6286-6291.,6286-6291.
• Parties: Arthur BARY, Anna Bary, Harold Zepelin, Joseph William Scherrer, Maia Scherrer and Patricia Julia Blau, Appellants, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

292 F.2d 53 (1961)

Arthur BARY, Anna Bary, Harold Zepelin, Joseph William Scherrer, Maia Scherrer and Patricia Julia Blau, Appellants, v. UNITED STATES of America, Appellee.

Nos. 6286-6291.

United States Court of Appeals Tenth Circuit.

May 31, 1961.

Ira C. Rothgerber, Jr., Denver, Colo., Austin W. Scott, Jr., Boulder, Colo., John R. Evans, and Theodore A. Borrillo, Denver, Colo. (John J. Abt, New York City, was with them on the brief) for appellants.

George B. Searls, Atty., U. S. Dept. of Justice, Washington, D. C., and Donald G. Brotzman, U. S. Atty., Denver, Colo. (J. Walter Yeagley, Asst. Atty. Gen., Jack D. Samuels and Robert L. Keuch, Attys., U. S. Dept. of Justice, Washington, D. C., were with them on the brief), for appellees.

Before BRATTON, PICKETT and LEWIS, Circuit Judges.

BRATTON, Circuit Judge.

This is a criminal case in which Arthur Bary and others were charged in an indictment containing a single count with the offense of conspiring (1) to advocate and teach the duty and necessity of overthrowing the Government of the United States by force and violence, and (2) to organize the Communist Party of the United States to advocate and teach the overthrow and destruction of the Government of the United States by force and violence, in violation of the so-called Smith Act, 54 Stat. 670, 671, 18 U.S.C.A. § 2385. The substance of the indictment was stated on the former appeal, Bary v. United States, 10 Cir., 248 F.2d 201, and need not be stated in detail here. After remand, the case was dismissed as to the defendant Johnson. It was tried as to the other defendants. All of them were convicted and sentenced. Separate appeals were perfected and the several appeals were consolidated in this court.

One contention vigorously urged for reversal of the judgments is that the withdrawal from the jury of a portion of the indictment invalidated the indictment in toto and required its dismissal. In carefully chosen language, the court at the outset of the trial and again in the formal instructions made it clear to the jury that the portion of the indictment charging a conspiracy to organize the Communist Party was withdrawn from their consideration. And with painstaking care, the court explained to the jury that appellants were on trial only on the charge of conspiring to advocate and teach the duty and necessity of overthrowing the Government by force and violence. The argument is made that such withdrawal amounted to an amendment of the indictment; that the court was without power to amend the indictment; that the amendment invalidated the indictment as a whole; and that the case should have been dismissed. It is said that no method is available by which to determine with certainty that the grand jury would have returned the indictment if it had known that under controlling law appellants could be indicted and convicted only for conspiring to advocate and teach the overthrow of the Government by force and violence but not for conspiring to organize the Communist Party. Strong reliance is placed upon Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849, to sustain the contention. That case condemned the action of the trial court in striking words from the indictment. It did not go any further. Ford v. United States, 273 U.S. 593, 602, 47 S.Ct. 531, 71 L.Ed. 793. No words were stricken from the indictment in this case. Its textual content remained unchanged. Reliance is also placed upon Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252. That case condemned the dual action of the court in admitting evidence which tended to establish a crime not charged in the indictment and in submitting to the jury instructions relating to such a crime. In this case, the court did not intentionally admit evidence merely tending to establish organizing the Communist Party as one objective of the conspiracy. Instead, the court was at pains throughout the trial to exclude evidence of that kind. And the court made it crystal clear at various junctures during the trial proceedings, including emphasis in the instructions, that appellants were being tried solely and exclusively on the charge of conspiring to advocate and teach the overthrow of the Government by force and violence. The action of the court in withdrawing from the consideration of the jury that portion of the indictment charging a conspiracy to organize the Communist Party was not within the range of condemnation enunciated in Ex parte Bain, supra, or Stirone v. United States, supra.

Rule of Criminal Procedure 7 (d), 18 U.S.C.A., expressly empowers the court on the motion of the defendant to strike surplusage from the indictment or information. It is not contended that the rule has any present application. But independent of an authorizing statute or rule, mere surplusage in an indictment or information may be disregarded, and such disregard does not render the indictment or information invalid if sufficient remains to charge a crime. Ford v. United States, supra; United States v. Drawdy, D.C., 288 F. 567; United States v. Weiss, D.C., 293 F. 992. In remanding Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356, for a new trial as to some of the appellants, it was implicit in the action of the court that with the allegations contained in the indictment respecting a conspiracy to organize the Communist Party disregarded, the indictment was sufficient to charge a conspiracy to advocate and teach the overthrow of the Government by force and violence. And that was also implicit in the action of this court in remanding Bary v. United States, supra, for a new trial as to all of the appellants, limited to the charge of conspiring to advocate the overthrow of the Government by force and violence. The invalidity of the indictment insofar as it charged a conspiracy to organize the Communist Party did not vitiate the indictment as a whole. Instead, such invalid portions were open to be treated as surplusage and disregarded. United States v. Albanese, 2 Cir., 224 F.2d 879, certiorari denied, 350 U.S. 845, 76 S.Ct. 87, 100 L.Ed. 753. And enough remained in the indictment to charge a conspiracy to advocate and teach the overthrow of the Government by force and violence.

Certain witnesses for the Government admitted in the course of their testimony that they had testified before the grand jury which returned the indictment. Appellants moved the court to require the Government to make available to them for purposes of impeachment such testimony given before the grand jury, or in the alternative that the court examine it in camera and then make available to them the portions thereof, if any, which disclosed inconsistencies with the testimony given at the trial. The motions were denied. It is traditional in judicial history that the proceedings before the grand jury are secret. Disclosure is to be made only when the need therefor outweighs the countervailing policy of secrecy. And when an accused seeks access to the proceedings of the grand jury for use for impeachment, or seeks examination of them in camera as a preliminary step to making them available for such purpose, the burden rests on him to show some basis for the belief that particular need for disclosure exists and outweighs the policy of secrecy. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1223; Travis v. United States, 10 Cir., 269 F.2d 928, reversed on another ground, 364 U.S. 631, 81 S.Ct. 353, 5 L.Ed.2d 340. Appellants failed to make the required showing of particularized need to break the seal of secrecy surrounding the proceedings before the grand jury, and, therefore, the court did not abuse its discretion in denying the request. It was recently held in effect that when it appears in the trial of a criminal case that a witness for the Government testified before the grand jury, the court upon request of the defendant should examine the minutes of the grand jury for inconsistencies and upon discovery of inconsistencies should make the inconsistent portions available to the defendant for use for impeachment purposes. United States v. Giampa, 2 Cir., 290 F.2d 83. But until the Supreme Court shall hold otherwise, we adhere to the rule requiring some preliminary showing of particularized need before the seal of secrecy attaching itself to the proceedings of the grand jury is broken.

Error is predicated upon asserted failure of the court to comply with the exactions of 18 U.S.C. § 3500. The statute defines the term "statement" as used therein. It provides in substance that a statement or report made by a Government witness or prospective witness in a criminal case to an agent of the Government shall not be within the reach of subpoena, discovery, or inspection until after such witness has testified on direct examination in the trial of the case. It further provides that after a witness called by the Government has testified on direct examination, the court shall on motion of the defendant require the Government to produce any statement, as defined in the statute, of the witness in the possession of the Government which relates to the subject matter concerning which the witness has testified. It further provides that if the entire contents of the statement relate to the subject matter of the testimony of the witness, the court shall order it delivered to the defendant for his examination and use. It further provides that if the Government contends that the entire contents of a statement ordered...